The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1867-05-28
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VI. That the new State assumed jpr-
isdfction over the counties without the
consent of Congress, and therefore
without any lawful compact between
Virginia and herself.
And lastly, because Virginia, on the
9th of December, 1865, withdrew her
offer Of compact.3
Z. proceed to consider these several
grounds under two or three general
heads: -ot 4st a. f,a. atrl1 $50. p
First. Whether the polls could have
been "safely and properly opened and
held" on the designated day by the
fourth section Of the act of the 3lst of
January, 1883, ,(the third of that OF the
4th of FEBRUARY is the same,) was Il
question submitted to the exclusive de-
cision of the Governor. The Language
of the law is Essif the Governor Of the
State shall be of opinion that the said
polls cannot be safely and properly
hello, y dc.. "he may, by proclamation,
postpone the same, and appoint in the
same proclamation, or by one to be
hereafter issued, another day for OPEN
ing and, holding the same. q The Gov
eTnor did not issue any such proclama-
ton. It is thereforeto be assumed that
he was OF opinion that the polls could
be safely and properly held on the day
an open one. The authority to pass
uponl 1t was conferred upon the Gov
ernor alone. No other tribunal could
legally decide 1t, consequently the
averment that the civil war prevented
the voters from attending cannot be
made. taA t1s 2TlH '1'.-'
Second. Whether the elections were
properly held, and majority of the
votes were in favor of annexation, are
also. closed questions. The bill alleges
that the Governor, on 14th of Septem-
Der, 1868, gave certificate that such
was the result. Upon that point also
he was made the exclusive judge.a The
provision OF the third section OF the act
Of January (that OF, February is to the
same effect Us, that the commissioners OF
elections are to ascertain, declare, and
certify the result of the vote, and make
two returns of it. One of these is to be
presented to the Governor within ten
days from the time of the voting, and
Ito quote the law) the Governor, "Lfof
opinion that the said UOte has been open
ed and held, aud The result GsceTtGfted
and certified pursuant TO LolO, lIulLcerti-
~ the result Of tie same, ItNder the seal
Of! tie State, to the GOVeTHorI of the said
State of West ViTgiRiG.p In regard to
these facts the laws contained no other
provision. They are therefore left to
the ultimate decision of the Governor.
He Is to certify them to the Governor
of the new State. That State can have
no other. evidence upon the subject.
The election in question WAS held, and
could only be held, under the authority
of Virginia. She was consequently in
her ownrway to inform West Virginia
OF what had been done. That State
was bound to rely upon such informa-
ton. She had mo right to go behind 1t
and inquire into the facts. To have
done so would have been merely i'm.
pertinent. 1t would have been to cali
in doubt the conduct of the Governor
OF. Virginia; TO have suggested that his
official Information was false. ,--,t
Such a suggestion would have been
not less insulting than illegal. These
REMARKS would be well founded II the
laws under examination contained no
other provisions than those referred to.
But they have one which makes them
yet more obviously correct. The fifLh
section Of the act of January (the corr
responding section in that of February
is the same) declares that 'tif a maiori-
ty of the votes given at the polls OPEN
ed and held pursuant TO the act, be In
favor OF annexation "then shall the
said county become part of tue State
of West Virginia when admitted into
the same with the consent of the Leg
islature thereof - AS L have already
said, whether this contingency had oc-
CURED or not, as far as 1t depended on
Virginia, West Virginia could only
know through the official certitl cate Of
the Governor of Virginia. Her own,
consent to the admission of the coun-
ties was to be given upon the authority
OF that certificate and could not be Civ
en- upon any other authority. Acting
as she was compelled to do upon this
hypothesis, she consented to the adj
mission, extended her laws over the
counties and their inhabitants, and has
done SO ever since. Under these circum-
stances stopermitVirginia to to regain them
upon the allegation that the elections
were not properly held, and that the
certificate of her Governor was untrue
from any cause, Especially in the abb
sence of any pretense that West Yir-
ginia had committed or been priVy to
any fraud In obtaining the certihcate,1
would be TO suffer Virginia 20 perpe-
trate a fraud upon the new State. i6As
far as that State is concerned she Is to
be considered innocent of any wrong
or unfair dealing in the matter, as she
not onlyhad a rightbut was bound to do
what she did upon, the official infofma-
ton transmitted toiher. It would there
fore be most unjust to visit nponher any
| loss upon the grounds stated In the bill.
When she extended her laws oyer the
counties, and assumed Jurisdiction
over them and their Inhabitants, the
compact batWeen herself and Virginia
/ was an executed one, which neither
had the right to annul or modify with
out the consent OF the other, % % -
In illustration of this let me reverse
the controversy. Suppose West Vir-
ginia WAS seeking 70 avoid the compact
upon the ground that the certificate of
abe Governor of Virginia ,awas false,
that the elections were not in fact held,
or that, If held, a majority of the votes
given were adverse to annexation, and
MISUNDERSTANDING the charges and
relying upon her Governors certificate
as, ,coHclusiVe evidence upon the sub
1 ject; would the court hesitate in deny
Ing relief2 Would they not say to the
1 new state, You acted upon the faith OF
the Governors rceFtiticate;g the laws
made that certificate the evidence upon
/ which you could alone act;sSY Virginia
\ never meant that you should be per-
mitted at any ttime after acting upon
the faith of il to inquire into the cleo
tions, pass upon her laws, supervise
the official conduct OF her officers, and
decide whether her statutes had been
4 complied with or0nots' She would be
4 told that these were questions which ii
was Tor Virginia to pass upon.g If that
4 State was willing to abide by the re-
4 suit, rascertained in a way which her
4 laws provided, il was not, for you. 10
question II. = r submit, then, may il
A please your honors, upon the points ]
Il have s0far examined, that upon prin-
ciple, Independent of Judicial nth0rity,
the complainant has no right % the re.
u lief she is soliciting. E1z ~ r. Hfla sna'
4 But this is established by the huthor-
4 ity OF several decisions OF this court.
j In the Gaze Of the commissioners oi
Knox county (Iudiana) Us. Aspinwall
. et, al (21 HoH.S 5S9J Jthel question arose.
d By statute of thai State the commits.
I sioners were authorized to subscribe te
certain railroad stock andtoissue bonds
in payment in case majority of the
voters of the county, afteE q prescribed
notice was given OF the time and Plaee