The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-05-28

by OF the votes had not 0een cast In
favor of the subscription, the court
held that the subscription and the
bonds would have been void. They
added, however, that there was ''a
question that underlies {" that inquiry,
land that is, who is. to determine
whether or not the election has been
properly held and u majority Of the
votes cast in favor of the subscription.
Is 1t to be determined by the court in
this collateral way in any suit on the
bond or coupon attached, or by the board
of commissioners as duty imposed
upon 1t before making the subscrip-
tion." r-e- sil.Ti .asr5.57ss
The court was of opinion, and SO de-
cided, that 1t was the exclusive duty of
the board. They said that "the act
makes it the duty of the sheriff to give
the notices of elections for the day men.
toned, and then declares il majority
ofthe votes given shall be In favor Of
the subscription the board shall sub.
scribe the stock. The right to do so be-
ing thus placed upon the fact that a
majority Of The votes were in favor Of
the subscription, 1t was the duty OF the
board to have ascertained the fact be-
fore subscribing. And as the law pro-
vided no other tribunal for that purpose
the board itself was TO ascertain 1t. The
judgment below was consequently af-
firmed. For the point for which cite
ii, the case was not as strong as the
present one. In the former the author
ity of the board to adjudge whether the
election had been legally conducted and
what was its result, was implied only,
because their authority to subscribe,
&C., was dependent on such fucts. In
this case the elections and their result
were in plain words, to be passed upon
first by the commissioners who super
intended the elections, and then by the
Governor. That officer was directed to
see whether the vote had been opened
and held, in that way to ascertain Its
result, and then to certify 1t officially to
the Governor of West Virginia. In this
instance, therefore, it may be even
more properly said than in that case,
that "no other tribunal (than the Gov
ernor) was provided for the purpose"
The same doctrine was held in the cases
Of Bissell Us. City of Jeffersonyille III
How, 2S7) and Moran Us. Commission
ers of Miami county, z Black, 722
And it would be, as 1 think, extraor-
dinary If the law was otherwise, par
tioularly as regards this high tribunal.
The questions which you are asked to
investigate are not suited to yourjuris-
diction. They are whether the cleo
tions in question could with safety have
been holden on the prescribed day in
consequence Of the then condition OF
the country? Whether they were, IN
fact, SO held2 How many votes were
given2 Whether legal or illegal votes?
Whether any legal votes were rejected3
Whether the judges OF the elections
properly discharged their. duty2 And
lastly, whether the Governor OF the
State certified truly or falsely in con-
sequence of fraudulent misrepreSentR-
tions made to. him by others? Are in
quiries of this kind proper for this tEi-
bunal? Are you to assume the func-
tions Of Judges of election, PASS upon
the qualification of voters, purge the
ballOt-bOx by rejecting votes which
should not have been received, or sup
ply votes which were illegally rejected?
Solve q uestions of residence, ofage, of
character, &c? And then how are you
to investigate them3- Are you 20 take
testimony under commission, or to
summon jury and have the witnesses
examined at your bar, thus converting
yourselves into court of nisi prius?
submit that such Investigations are
very unsuited to the elevated duties of
this tribunal. They can only be de-
cided by the authorities of the State,
upon whom the power to decide is con-
ferred by the laws under which they
arise. These authorities, in the words
of Mr.. Justice Nelson, in the case of q
How, are alone, as 1 think, eft and
competent to be the depository of such
a trust"
In respect to the allegation in the bill,
that the civil war prevented the obtain
ing full and free expression of the
wish of the people on the day designR-
ted for the election, in addition to what
i have before said upon that point,
these further considerations seem to
me to be conclusive. When theacts in
question were passed, in January and
February, 1858, the war was being
waged, and the confederate government
no doubt anticipated a successful re-,
suit. It is said that most of the voters
of the two counties, particularly those
of Jefferson, were in the confederate
military or civil service. Their object
was TO separate Virginia from the
Union. To that they were pledged, and
were risking their property and lives to
accomplish it. The Legislature of the
State which passed the laws was, how.
ever, loyal. Z. 1t never, therefore, could
haYe been their purpose to make their
consent TO the cession depend upon the
votes of that portion of their people
who were seeking to destroy the Gov
ernment. They must, on the contrary,
have designed TO submit IL only to the
votes of the loyal. The provision COM
seQuentlY, that the Governor should
appoint some other day for! the election
than the one named, If in his opinionit
could not then be safely ana properly
held, you are bound to suppose was in
tended for the benefit of the loyal; to
construe it otherwise would be to infer
that the loyal authorities of the State
intended to leave it TO the disloyal of
their people to defeat their object and
the wishes Of the loyal portion. Such a
supposition seems to me to be so unjust
to such authorities as almost to be alb
surd. hltsa0, sl..i. 1zl0sl.l "a '.sui 4
Second. 1t Is commanded that
was no valid compact between the two
States, because. ofthe want OF the CON-
sent of Congress. 1t Is not denied that
Congress consented to the admission of
the new State into the Union. This
cember, 1862, (l2 Statutes, $685. West
Virginia Is, then. a State of the
Union by the joint consent of her
self, Virginia, and Congress. The
objection, therefore, / am considering
Is not that she Is not State, but thai
Congress has not consented to the COM
pact proposed to her by Virginia, that
Berkeley and JedersOn should, upon
The contingency stated becomeia part
OF neE teEtlLQF, ,Ysg l4nAL tue proposition
was accepted by West Virginia appears
blythe accomplishments bill. Her statutes,
which you are bound to notice, OF the
9th Of August and ID of November, 1868,
| in words admit the, two counties, and
they. have ever since been under her
jurfsdi diction, (StRtutes of Vest Yir-
gfnfa, 34-I03.) Her Constitution pro-
\ Vided that additional territory Knight
bead limited into and become part Of this
State with the consent of the Iegisla-
ture.n When, therefore, she became d
State of the Union by. the act of Con-
gress of 1862, with this provision in her
constitution, that body gaveits consent
in advance That she might acquire adj
ditional territory. y do mot contend
| that before any such acquisition Con-
| gress might not have Withdrawn OF
modified such consent. But this they
\ did not do.S ON the contrary, as far az
4 FatIofsffAFN