USA > West Virginia > Encyclopedia of contemporary biography of West Virginia. Including reference articles on the industrial resources of the state, etc., etc. > Part 36
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at the head of the Governor's Staff. Governor Fleming's staff consisted of the following members: B. H. Oxley, Adjutant-General ; John Hoor Russel, Paymaster-General; A. A. Franz- heim, Commissary-General; John W. Bosworth, M.D., Surgeon-General; W. A. MacCorkle, Aide-de-Camp; J. T. Boyer, Aide-de-Camp; T. M. Jackson, Aide-de-Camp; B. D. Gibson, Aide- de-Camp. These are representative gentlemen of their respective sections of the State, and reflected credit upon themselves and their su- perior officer.
GEORGE E. PRICE.
HON. GEORGE EDMUND PRICE, of Charleston, State Senator, 1883-1889 and Pres- ident of the Senate, 1885-1887, was born on the 9th day of November, 1848, on a farm near Moorefield, in Hardy County, Va. (now West Virginia). His preliminary education was ob- tained from private schools at the place of his birth, but in the fall of 1867 he entered George- town College, D. C., where he remained two years. During the time he was at college he passed through four classes which usually re- quire a year each, and carried off the highest honors in most of the branches he studied. In the fall of 1869 he entered upon the study of the law, in Frederick County, Md., and in De., cember, 1871, he was admitted to the bar in Frederick. Here he remained following the practice of his chosen profession until Septem- ber, 1875, when he removed to the thriving town of Keyser, the county-seat of Mineral County, W. Va., on the Baltimore and Ohio Railroad. At Keyser he engaged actively in the practice of the law, and by his attention to business soon became one of the leading lawyers of his section of the State. Devoted to his profession and without any special leaning in the direction of politics or political preferment, Mr. Price
took a deep interest in public affairs, and at the earnest solicitation of his Democratic friends he was induced to accept the nomination for the State Senate from the district composed of the counties of Mineral, Hampshire, Hardy, Grant, and Pendleton, in the fall of 1882. He was readily elected and attended the sessions of
the Legislature at Wheeling in 1883 and 1885; was re-elected to the same body in 1886, served through the regular and special sessions of 1887, and the regular session of 1889, and a special session in 1890; so that in all Mr. Price has served through six sessions of the Legislature of West Virginia. During the period of his service in the Senate many important questions both of general legislation and politics arose, and he always took a prominent part in the debates and conferences concerning these questions. He was elected President of the Senate at the be- ginning of the session of 1885, and was re-elected to the same position at the session of 1887. It was during the session of 1887 that the memo- rable contest over the election of a successor to Hon. J. N. Camden to the United States Senate took place. Mr. Camden was a candidate for re-election and was supported by a majority of the democratic members, but there were twelve Democrats, among whom was Mr. Price, who refused to vote for Mr. Camden, and declined to go into a party caucus for the purpose of nominating a Democratic candidate. The sup- porters of Mr. Camden had not votes enough to elect him in the Joint Assembly of the two houses, which met every day to vote for a sen- ator. The contest was exciting, and at times was characterized by a good deal of bitterness; it continued during the whole of the regular session, and finally the Legislature adjourned without electing Mr. Camden's successor, and also without passing the General Appropriation Bill for the support of the State Government. As President of the Senate it was Mr. Price's duty to preside over the Joint Assembly, and, as may be supposed, he was called upon to de- cide many new and important questions relating to the election of United States Senators. All of his decisions were readily acquiesced in by all parties, and he was generally commended for his ability and impartiality as a presiding officer. Upon the adjournment of the Legisla- ture, Gov. E. W. Wilson appointed Hon. Daniel B. Lucas to fill the vacancy in the United States Senate caused by the failure of the Legislature to elect. And as no appropriations had been made for the support of the government, the Gov- ernor called an extraordinary session of the Leg- islature to meet in May, 1887, designating in the call the special objects to be acted upon at such
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extraordinary session, but did not specify the election of a United States Senator as one of the objects. The Constitution of the State pro- vides that ."when so convened it shall enter upon no business except that stated in the proc- lamation by which it was called together." When the Legislature met pursuant to this call the question at once arose whether it had the power to elect a United States Senator. There was a great difference of opinion on this ques- tion, but the prevailing view seemed to be that as this was not "stated in the proclamation by which it was called together," the Legislature could not enter upon it. During the debate in the Senate on this question, Mr. Price left the chair and addressed the Senate. His speech on this occasion is well remembered by all who heard him, and was widely published as giving the correct view of the question under discus- sion. He showed that the matter of the election of United States Senators is not regulated or governed by the Constitution or statutes of the several States; that it involves the very life of the Federal Government, as the Senate is a nec- essary constituent part of that government. Hence it is provided for and regulated entirely by the Constitution of the United States and the statutes passed by Congress in pursuance of the Constitution. There is nothing to be found on the subject in the Constitution or Statutes of West Virginia, but turning to the Constitu- tion of the United States, he cited Section 3 of Article I., which provides that " if vacancies hap- pen" (in the office of Senator) "by resignation or otherwise during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies."
" This," said Mr. Price, "is the supreme law of the land. If there is anything in the Consti- tution or laws of our State in conflict with it, the State Constitution and laws must give way. It is just as much the duty of this Legislature to obey this injunction of the Federal Constitu- tion which was adopted and assented to by all the States, as it is to obey any provision of our own State Constitution. This being the case, it only remains to ascertain the meaning of this section and determine whether it applies to the present situation. It is conceded that a vacancy has happened and that the Executive of this State has made a 'temporary appointment.' Under
this section the temporary appointment is only 'until the next meeting of the Legislature.' The only question for us to decide, then, is whether this is the next meeting of the Legisla- ture, because if it is, it is clear that it is our duty to 'fill such vacancy.' If this is the Leg- islature of West Virginia, one branch of which I am now addressing, then it will be conceded that this is its 'next meeting' since said vacancy happened. Now can it be questioned for a mo- ment that this body now in session in the Capi- tol of the State is the Legislature of West Vir- ginia? It is composed of the same men acting under the same commissions who sat in the regular session from January to March last. It has the same officers, the same committees, the same attaches. It has been engaged in making laws for the State-exercising the supreme law- making power-which is confided alone to the Legislature. It is true that it is restricted at this session to certain subjects mentioned in the Governor's proclamation. But this question is not what restrictions the State has put upon its Legislature, but is this the Legislature? If this body is not the Legislature of West Virginia, then what is it? The very provision of the State Constitution, which those holding a differ- ent view from that which I am endeavoring to present, invoke, calls it 'the Legislature.' The provision is 'the Governor may on extraordinary occasions convene at his own instance the Leg- islature; but when so convened, it shall enter upon no business except that stated in the proclamation by which it was called together.' This body, then, is the Legislature of West Vir- ginia, this is its 'next meeting' after the vacancy happened; hence it follows 'as the night the day' it is our duty at this session to 'fill such vacancy.'
The foregoing will give some idea of Mr. Price's style of reasoning. No attempt was made to answer this argument, and the Legisla- ture did proceed soon afterward to the election of a United States Senator, and after a sharp contest finally elected Hon. Charles J. Faulkner to that office. Mr. Lucas, claiming under the Governor's appointment, contested the right of Mr. Faulkner to the seat in the Senate, but the United States Senate seated Mr. Faulkner, hold- ing that his election was legal. At the begin- ning of the session of 1889 the Republicans had a majority in the Senate, but there was a divi- sion among them in regard to the election of the officers of that body. The law provides that the oldest Senator shall call the Senate to order and preside until a President is elected. This has been held to mean the oldest Senator
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in point of service. At this time there were three Senators whose terms of service had been the same and who had served longer than the others. These were Senators Scott and Wood- yard, Republicans, and Mr. Price. The ques- tion arose as to which of the three should call the Senate to order, but it was gracefully settled by the two Republican Senators calling on Mr. Price and proposing that he should do so, stating that they were inexperienced in the duties of the chair, and that they knew from his past record that he would be entirely fair and impar- tial in that position. At that time there was a contest pending over the election that had just taken place for the office of Governor of the State, and this contest had to be tried and de- cided by this Legislature, and, in case of a va- cancy in the office of Governor the President of the Senate became the Governor, and there was great political excitement and bitterness be- tween the two parties growing out of this con- tested election for the highest office in the State; there was also a United States Senator to be elected at that session to succeed Hon. John E. Kenna. The Republicans had a majority of the Senate, but the Democrats had a majority of the House of Delegates sufficient to give them a bare majority of one on joint ballot of the two Houses. The President of the Senate presides over the joint assembly during the election of a United States Senator, and also during the trial of the contest for the office of Governor. A dead-lock ensued over the election of the Presi- dent'of the Senate, the Republicans being unable to elect their caucus nominee by reason of the candidacy of Hon. R. S. Carr, who had been elected as a greenbacker or labor candidate, and who was supported by one or two of the Repub- licans for the Presidency of the Senate. The contest continued for about three weeks, during which time Mr. Price presided. The result was the election of Mr. Carr as President by a com- bination of most of the Democrats and a number of Republicans. Upon the organization of the Senate that body repaired to the Hall of the House of Delegates, for the purpose of canvass- ing the election returns for Governor and other State officers. It was well known that General Goff, the Republican candidate, had an apparent majority of one hundred and ten on the face of the returns. Art. VII., sec. 3 of the State Con-
stitution provides " the returns of every election for above-named officers shall be sealed up and transmitted by the returning officers to the Secretary of State, directed to the Speaker of the House of Delegates, who shall immediately after the organization of the House, and before proceeding to business, open and publish the same, in the presence of a majority of each House of the Legislature, which shall for that purpose assemble in the Hall of the House of Delegates. The person having the highest number of votes for either of said offices shall be declared duly elected thereto, but if two or more have an equal and the highest number of votes for the same office, the Legislature shall by joint vote choose one of such persons for said office. Contested elections for the office of Governor shall be determined by both Houses of the Legislature by joint vote, in such manner as may be prescribed by law." The law passed in pursuance of this provision is Secs. 13 and 14, of Chapter 6 of the Code of West Virginia, as follows :
" 13. If the election of Governor, Treasurer . be contested the contestant must give notice, with specifications and affidavits, to the person whose election is contested, within sixty days thereafter; and within thirty days there- after the return notice must be given to the contestant. The parties shall finish taking de- positions within forty days after the last men- tioned notice is delivered. The depositions shall be transmitted to the Clerk of the House of Delegates, to be delivered by him to the joint-committee or special court hereinafter pro- vided for. In other respects the regulations contained in this chapter respecting contests for a seat in the Legislature shall be observed so far as they are applicable. 14. When the elec- tion of Governor is contested, the petition of the contestant and the depositions shall be referred to a joint committee of the two houses for ex- amination and report; which Committee shall consist of two senators elected by ballot by that house, and three delegates elected in the same manner by the House of Delegates. The con- test shall be determined by the Legislature, both Houses thereof sitting in joint session in the hall of the House of Delegates, and the President of the Senate shall preside."
When the two Houses met in joint session to canvass the returns of the election for State officers, the first question that presented itself was whether the returns for the office of Gov- ernor in the hands of the Speaker should be
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opened and canvassed, and the result declared on the face of the returns, before the contested election was decided. It was known that Gen- eral Goff, the Republican candidate, had a majority on the face of the returns, and the Republicans insisted that the returns should be canvassed, and the result declared according to the face of the returns and before the contest was decided. The question was a new one. No precedents could be found, and the debate on the question was an interesting and exciting one. Mr. Price had given the questions involved careful and conscientious study, and the speech he made during this debate was recognized as stating in its strongest light the position which was finally adopted by the Democratic mem- bers of the Legislature. He showed that a con- test for the office of auditor, treasurer or any of the other State offices, is under the law to be heard and decided by a Special Court consti- tuted in the manner prescribed by the statute, but that a contest for the office of Governor is to be decided by the Legislature. The Legisla- ture only meets biennially. There is but one regular session of a legislature, and that begins on the second Wednesday of January next after the election, and is limited to forty-five days unless extended by two-third vote of the mem- bers elected to each House. At the time the present statute was passed the election was held on the second Tuesday of October, which was about ninety days before the meeting of the Legislature and about one hundred and thirty- five days before the end of the session as fixed
by the Constitution. So that under the law at
the time it was enacted, ample time was given for giving the notices and taking the deposi- tions in a contest for the office of Governor, be- fore the meeting of the Legislature, and for finally disposing of the case during the regular session and before the 4th of March, when the term of office begins. It was evidently not con- templated that one of the contestants for the office should be inducted into office before the contest was decided. Legislature would ad- journ by limitation of law before the 4th of March, and there was no power to call it together
Governor is commander of the military and the again except that given to the Governor. The
head of the Executive department, and after a man was in the office he would have it com-
pletely in his power to prevent a trial of the contest from ever taking place under the present law. Since the statute above mentioned was passed, the time for holding the election has been changed from October to November by an amendment of the Constitution, but there has been no change in the statute regulating a con- test for the office of Governor, and there is there- fore not time enough now to mature and try the case during the regular session of the Legisla- ture. It will have to be tried at a special ses- sion after the 4th of March. Such a state of things was not contemplated by the makers of the Constitution. Here is a case not expressly provided for. It is then the duty of the Legis- lature to carry out the spirit and purpose of the Constitution by postponing the declaration of the result of the election until after this contest is decided, leaving the office in the possession of the present incumbent until it shall be finally decided which of the contestants is entitled to it. This is fair, it is not contrary to any provi- sion of the Constitution, and is the only way to prevent one party from obtaining an unfair ad- vantage over the other; any other course would allow one party to get possession of the office and hold it if he chose and prevent his right to it ever being tried. If General Goff is entitled to this office he will get it after the case is heard and decided, and the short time he will be kept out of it will not amount to anything to him. If he is not entitled to it he should not be put into it and then afterward turned out. Such a
course, so far from adding anything to the honors he has already gained both as a soldier and in civil life, would rather be a service of humilia- tion and mortification. The foregoing merely states in a general way one branch of the argument advanced by Mr. Price on the ques- tion. The joint session of the Legislature adopted a resolution postponing the publication of the returns and the declaration of the result of the election for Governor until after the con- test for the office should be decided, and Gov- ernor E. W. Wilson continued to hold the office pending the contest. The Legislature adjourned at the end of the forty-five days prescribed as the limit of the regular session, after appointing the committee prescribed by the statute to in- vestigate and report upon the evidence taken by both parties. Directly after the adjournment
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of the Legislature General Goff instituted in the Supreme Court of Appeals of the State a pro- ceeding to recover the office of Governor by mandamus. But the Court after full argument refused the writ, holding that the Legislature had the power and were justified in taking the action it had under the circumstances surround- ing the case, and Judge Snyder, who delivered the opinion of the Court, in addition to other arguments, followed to some extent the same line of argument that Mr. Price had presented to the joint session of the Legislature. The case is reported in 32 West Virginia Reports, page 393. The committee of the two Houses which was appointed to examine and report upon the evidence in the case, was engaged in this work until the next January, and when they signified that they were ready to report Gov- ernor Wilson convened the Legislature in extra session to hear the report and decide the con- test. A great mass of testimony had been taken, and the majority of the committee, the Demo- cratic members, made a voluminous report, as did also the Republican minority of the commit- tee, the former being in favor of Judge Fleming and the latter in favor of General Goff. There was intense interest in the proceedings of this trial throughout the whole State. There were no rules to govern the Legislature in conduct- ing the trial, and a committee was appointed to prepare rules and regulations. Mr. Price was made chairman of this committee. He was also made chairman of a committee which was ap- pointed to investigate charges of the bribery or attempted bribery of one or more members of the Legislature in connection with this case, and after the case had been fully and elaborately argued by the counsel on both sides and by the members of the contest committee, Mr. Price and his colleague, Hon. S. L. Flournoy, who had both made a very careful study and examina- tion of the evidence, were requested by various members to present their views and conclusions to the joint session. Mr. Price was only allowed twenty minutes in which to explain his position. A large number of votes had been attacked by both parties as illegal. There were a few of such votes in almost every county in the State, but the contest turned upon the legality of a considerable number of votes in Brooke County, which were sought to be thrown out by the
contestant on the ground that they had voted in the wrong district; on the legality of a recount of votes in Kanawha County, and on the legality of several hundred negro votes cast in the Counties of Mercer and McDowell which were challenged by the contestant. Mr. Price stated that of the illegal votes scattered about the State about as many were cast for the contestant as for the contestee; that the votes sought to be thrown out in Brooke County were cast by legal voters and ought not in his opinion to be thrown out on a mere technicality ; that the evidence as to the legality of the recount in Kanawha County was so conflicting that it was difficult to tell what the truth was; and that in his opinion the whole case should turn upon the negro votes which had been challenged in Mercer and McDowell Counties. The evidence showed that two years before the election those two counties were very sparsely settled, being a rugged moun- tain region, and that there were, before the build- ing of the Norfolk and Western Railroad, no ne- groes in said counties. This railroad had been built through Mercer and into McDowell within two years before the election and a considerable part of it not over a year. It had been followed by the opening of a number of coal mines along its line which were operated almost exclusively by negro laborers brought from the States of Virginia and North Carolina and other Southern States. These negroes did not come from other counties of West Virginia because there was no adequate means of access into this region from other portions of the State-the only means of access being the N. and W. R. R. which entered Mercer from the State of Virginia, the great Pocahontas mines being located on the road just over the line in Virginia. These negroes had come there to work in the mines, there was no other employment for them there. The pay- rolls of the mining companies had been pro- duced and they showed that some two hundred or more of these negroes, whose votes had been challenged, had not been at work there as much as a year and many of them but a few months before the election. The evidence showed that nearly all of those who had families had left them in Virginia, and that generally they moved about from one place to another working but a short time at one colliery and then going to an- other or else disappearing altogether, and at the
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time the evidence was taken, which was only a few months after the election, it appeared that quite a large number of them had gone back South and were not in the counties of Mercer and McDowell. A number of the owners, operators, and superintendents of the coal mines were ex- amined and testified that some of those whose votes were challenged had been in the State more than a year prior to the election, but of- fered no evidence as to the great body of those challenged. The men whose votes were chal- lenged were not called nor were their fellow- workmen. If these men had resided in those counties more than a year before the election, if they were such permanent residents and citizens of the State as entitled them to vote at the elec- tions and thus participate in the government of the State, it would have been easy to have shown it. A strong prima facie case had been made by the contestant against the right of these men to vote and no proof had been offered on the other side, although it was a matter easy of proof if it in fact existed. The able counsel of General Goff, the contestee, had been careful to produce proof to sustain every vote that had been challenged where it could be done, they had produced such proof as to a number of these negro votes challenged in these counties, and the fact that they had offered no proof as to the rest, authorized the inference that the facts were against them and that these votes were illegal and fraudulent. The question to determine was, whether this migratory, shifting body of igno- rant negroes, without having acquired the resi- dence required by law, with no permanent homes in the State, having no interests of any kind in the State-here to-day and gone to-mor- row-shall by their votes decide who shall be the Governor of the State of West Virginia. Upon this question it would seem there could be but one opinion. More than two hundred of these votes must be thrown out, and when this is done Judge Fleming has over one hundred majority of the legal and qualified votes of the people of the State and should be declared the legally elected Governor of the State of West Virginia. This speech and that of Senator Flournoy, who preceded Mr. Price and presented the same view of the matter substantially in a different manner, had a marked effect upon the Legislature. The result of the contest was that
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