Virginia v. West Virginia

• Decision Date: 01 December 1870
• Citation: 78 U.S. 39,11 Wall. 39,20 L.Ed. 67
• Parties: VIRGINIA v. WEST VIRGINIA
• Court: U.S. Supreme Court

78 U.S. 39

20 L.Ed. 67

11 Wall. 39

VIRGINIA v. WEST VIRGINIA.

December Term, 1870

ON original bill to settle the boundary line between the States of Virginia and West Virginia, the case as existing in well-known public history and from the record being thus:

A convention professing to represent the State of Virginia, which assembled in Richmond in February, 1861, attempted by a so-called 'ordinance of secession' to separate that State from the Union, and combined with certain other Southern States to accomplish that separation by arms. The people of the northwestern part of the State, who were separated from the eastern part by a succession of mountain ranges and had never received the heresy of secession, refused to acquiesce in what had been thus done, and organized themselves to defend and maintain the Federal Union. The idea of a separate State government soon developed itself; and an organic convention of the State of Virginia, which in June, 1861, organized the State on loyal principles—'the Pierpont government' and which new organization was acknowledged by the President and Congress of the United States as the true State government of Virginia—passed August 20th, 1861, an ordinance by which they ordained that a new State be formed and erected out of the territory included within certain boundaries (set forth) including within those boundaries of the proposed new State the counties of, &c. [thirty-nine counties being named]. These counties did not include as within the proposed State the counties of either Greenbrier, Pocahontas, Hampshire, Hardy, Morgan, Berkeley, or Jefferson; but the third section of the ordinance enacted that the convention might change the boundaries described in the first section of the ordinance so as to include within the proposed State the counties of Greenbrier and Pocahontas, or either of them, and also the other counties just above named, or either of them, 'and also all such other counties as lie contiguous to the said boundaries or to the counties named,' if the said counties to be added, or either of them, by a majority of the votes given, &c., should declare their wish to form part of the proposed State, and should elect delegates to the said convention, &c. The name of the new State as ordained by the ordinance was Kanawha.

The convention provided for by the ordinance met in Wheeling, November 26th, 1861, and made a 'Constitution of West Virginia.' Certain counties named, forty-four in number, 'formerly part of the State of Virginia,' it was ordained should be 'included in and form part of the State of West Virginia.' No one of the counties of Pendleton, Hardy, Hampshire, Morgan, Berkeley, or Jefferson, were among these forty-four. The constitution proceeded, in a second section:

'And if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall be included in and form part of the State of West Virginia; and if the same shall be so included, and a majority of the votes cast at the said election or elections, in the district composed of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia.'

All through the constitution, as, ex. gr., in the fixing of senatorial and representative districts, and of judicial circuits, provision was made for the case of these two sets of counties coming in, or of one set coming in without the other. A separate section ordained that——

'Additional territory may be admitted into, and become part of this State, with the consent of the legislature.'

And it provided for the representation in the Senate and House of Delegates of such new territory.

By the terms of this constitution it was to be submitted to a vote of the people on the first Thursday in April, 1862; and on a vote then taken it was ratified by the people of the forty-four counties first named, and by those of Pendleton, Hardy, Hampshire, and Morgan. But no one of the counties of Berkeley, Jefferson, or Frederick, apparently, voted on the matter; owing, as was said by the defendant's counsel at the bar, to the fact, 'that, from the 1st of June, 1861, to the 1st of March, 1862; during which time these proceedings for the formation of a new State were held, those counties were in the possession, and under the absolute control, of the forces of the Confederate States; and that an attempt to hold meetings in them to promote the formation of the new State would have been followed by immediate arrest and imprisonment.'

All this being done, the legislature of Virginia, as reorganized, passed, on the 13th May, 1862, an act, in title and body, thus:

An Act giving the consent of the Legislature of Virginia to the formation and erection of a new State within the jurisdiction of this State.

§ 1. Be it enacted by the General Assembly, That the consent of the legislature of Virginia be, and the same is hereby given to the formation and erection of the State of West Virginia, within the jurisdiction of this State, to include the counties of Hancock, &c. [forty-eight counties being named (being the forty-four first mentioned, with Pendleton, Hardy, Hampshire, and Morgan), but the counties of Berkeley, Jefferson, or Frederick, not being included], according to the boundaries and under the provisions set forth in the constitution for the said State of West Virginia and the schedule thereto annexed, proposed by the convention which assembled at Wheeling on the 26th day of November, 1861.

§ 2. That the consent of the legislature of Virginia be, and the same is hereby given, that the counties of Berkeley, Jefferson, and Frederick, shall be included in and form part of the State of West Virginia WHENEVER the voters of said counties shall ratify and assent to the said constitution, at an election held for the purpose, at such time and under such regulations as the commissioners named in the said schedule may prescribe.

§ 3. That this act shall be transmitted by the Executive to the senators and representatives of this Commonwealth in Congress, together with a certified original of the said constitution and schedule, and the said senators and representatives are hereby requested to use their endeavors to obtain the consent of Congress to the admission of the State of West Virginia into the Union.

§ 4. This act shall be in force from and after its passage.

Under this act, no elections apparently were held; and on the 31st December, 1862,¹ Congress passed

An Act for the admission of the State of 'West Virginia' into the Union, and for other purposes.

Whereas, The people inhabiting that portion of Virginia known as West Virginia, did by a convention assembled in the city of Wheeling, on the 26th November, 1861, frame for themselves a constitution with a view of becoming a separate and independent State; and whereas, at a general election held in the counties composing the territory aforesaid, on the 3d of May last, the said constitution was approved and adopted by the qualified voters of the proposed State; and whereas, the legislature of Virginia, by an act passed on the 13th day of May, 1862, did give its consent to the formation of a new State within the jurisdiction of the said State of Virginia, to be known by the name of West Virginia, and to embrace the following named counties, to wit [the forty-eight counties mentioned in the above-quoted Virginia act of May 13, 1862, were here set forth by name, and not including Berkeley or Jefferson]; and whereas, both the convention and the legislature aforesaid have requested that the new State should be admitted into the Union, and the constitution aforesaid being republican in form, Congress doth hereby consent that the said forty-eight counties may be formed into a separate and independent State; therefore,

Be it enacted, &c., That the State of West Virginia be, and is hereby declared to be one of the United States of America, and admitted into the Union on an equal footing with the original States, in all respects whatsoever, &c.

The act contained a proviso that it should not take effect until after the proclamation of the President of the United States, hereinafter provided for. It then proceeded to recite that it was represented to Congress that since the convention of 26th November, 1861, which framed and proposed the constitution for the said State of West Virginia, the people thereof had expressed a wish to change the 7th section of the 11th article of said constitution, by striking out the same, and inserting the following in its place. The article [on the subject of slavery] was then set forth. It was therefore further enacted that whenever the people of West Virginia should, through their said convention, and by a vote to be taken, &c., make and ratify the change aforesaid, and properly certify the same under the hand of the president of the convention, it should be lawful for the President of the United States to issue his proclamation stating the fact, and that thereupon this act should take effect, and be in force from and after sixty days from the date of the proclamation.

This proclamation President Lincoln did issue on the 20th April, 1863,² reciting the act, with, however, a condition annexed; reciting that proof of compliance with the condition, as required by the second section of the act, had been submitted to him, and in pursuance of the act declaring and proclaiming that the act should take effect, and be in force from and after sixty days from his proclamation.

Next in the history came certain acts of the State of Virginia among them one passed January 31, 1863, and which, with its title, ran thus:

An Act giving the consent of the State of Virginia to the County...