Los Angeles herald., 1892-01-31


congressional assent was given. The
provision in the constitution is that "no
state shall, without the consent OF con-
gress, enter into any agreement or COM
pact with another state," etc. Art. J.,
eec. 10.
The time when this consent is to be
given, whether before or after or stimuli
taneous with such agreement or COM
pact, or the form in which it is to be
given, the constitution does not pro-
vide.
MIR. Justice Miller delivered the
opinion of the court:
To determine these ques-
tions, it will be necessary to examine
into the history of West Virginia. The
first step in this matter was taken by
the organic convention of the state of
Virginia, which in 1861 reorganized that
state, and formed for it what was known
as the Pierpont government--an organ
ization which was recognized by the
president and by congress as the state
of Virginia, and which passed the four
statutes set forth as exhibits in the bill
of complainant. This convention passed
an ordinance, August 80, 1861, calling q
convention of delegates from certain
designated counties of the state of Vir-
ginia to form a constitution for new
state to be called Kanawha.
"The third section of that ordinance
provides that the convention, when as
sembled, may change the bounda-
ries of the new state as de-
scribed in the first section, so as
to include the counties of Greenbrier
and Pocahontas, or either of them, and
also the counties of Hampshire, Hardy,
Morgan, Berkeley and Jefferson, or
either of them,' if the said counties, or
either of them, shall declare their wish,
by majority of votes given, and shall
elect delegates to the said convention.
1.-The convention authorized by this
ordinance assembled in Wheeling, No
vember 26, 1861. 1t does not appear
that either Berkeley or Jefferson was
represented, but it formed constitution
which, after naming the counties COM
posing the new state in the first section
of the first article, provided, by the
second section, that if a majority OF the
votes cast at an election to be held for
that purpose in the district COM
posed of the counties of Berkeley.
Jefferson and Frederick, should be In
favor of adopting the constitution, they
should form part of the state of West
Virginia. That constitution also pro-
vided for representation OF these coun-
ties in the ssnate and house of dele
gates if they elected to become part of
the new state, and that they should in
that event constitute the eleventh judi
cial district. A distinct section also de-
clares, in general terms, that additional
territory may be admitted into and be-
come part of the state with the con-
sent of the legislature.
''The people ratified the constitution
by vote on April -, 1862, but it did
not appear that the counties of Ber-
kelley, Jefferson and Frederick took any
vote at that time.
"Next in order of this leg
islative history is the act
of the Virginia legislature
of May 13, 1862, giving the consent of
the state of Virginia to the formation OF
the state of West Virginia out of certain
counties named under the provisions set
forth in its constitution, and by its Sec
ond section it is declared that the con-
sent of the legislature of Virginia is
also given to the counties of Berkeley,
Jefferson and Frederick, which shall be
included in said state whenever the
voters of said counties shall notify and
assent to said constitution, at an cleo
tion held for that purpose, at such time
and under such regulations as the COM
missioners named in the act may pre-
SCRIBE
"This act was directed to be sent to
the senators and representatives OF
Virginia and congress-, with in
structions to obtain the con-
sent of congress to the admission OF
the state OF West Virginia into the
union.
Accordingly on the 31st OF December,
1852, congress acted on these matters,
and reciting the proceedings of the con-
vention OF West Virginia, and that both
that convention and the legislature OF
the state of Virginia had requested that
the new state should be admitted into
the union, it passed an act for the ad-
mission of said state.
Snow, we have here on two different
occasions the emphatic legislative pro-
position of Virginia that these counties
might become part of West Virginia
and we have the constitution of West
Virginia agreeing to accept them,
and providing for their place in
the newborn state. There was one
condition, however, imposed by
Virginia to her parting with them, and
one condition made by West Virginia to
her receiving them, and that was the
same, namely: The assent Of the ma
| jority OF the voters..of the counties to the
| transfer.
SIT seems to us that here was an
agreement between the old state and
the new that these counties should be-
come part of the latter, subject to that
condition alone. Thescondition
was one which could be ascertained or
carried out at any time. There
was then a valid agreement between
two states consented to by congress.
The vote was taken under these
statutes, and certified to by the gov
ernor. He was OF the opinion that the
result was in favor of the transfer. He
certified this fact under the seal of the
state to the state of West Vir-
ginia, and the legislature of that
state Immediately assumed juris-
diction over the two counties, provided
| for their admission, and they have been
a part OF that state ever since.
"This view OF the subject renders it
unnecessary to inquire into the effect of
the act of 1865, Withdrawing the consent
of the state of Virginia, or the act of
congress of 1866, giving consent after the
attempt of the state to withdraw hers.
| The demurrer to the bill is. therefore.