The panhandle Counties werent added to W Va until 1866 , after the war was over. I never found out why these two panhandle counties were tacked on at that date. TheWheeling conventions never mentioned these two countoes and it seems like an afterthought.
They was under the military control of the South during the first convention Farmerman so no vote could be taken until the war was over in those counties.
After reconvening on August 6, the Second Wheeling Convention again debated secession from Virginia. The delegates adopted a resolution authorizing the secession of 39 counties, with the counties of Berkeley, Greenbrier, Hampshire, Hardy, Jefferson, Morgan, and Pocahontas to be added if their voters approved, and authorizing any contiguous counties with these to join the new state if they so voted as well. On October 24, 1861, voters in the 39 counties plus voters in Hampshire and Hardy counties voted to secede from the state of Virginia. The ballot also allowed voters to choose delegates to a constitutional convention, which met from November 26, 1861, to February 18, 1862. The convention chose the name "West Virginia," but then engaged in lengthy and acrimonious debate over whether to extend the state's boundaries to other counties which had not voted to secede. Added to the new state were McDowell, Mercer, and Monroe counties. Berkeley, Frederick, Hampshire, Hardy, Jefferson, Morgan, and Pendleton counties were again offered the chance to join, which all but Frederick County did. A new constitution for West Virginia was adopted on February 18, 1862, which was approved by voters on April 4.
Governor Pierpont recalled the Reorganized state legislature, which voted on May 13 to approve the secession (and to include Berkeley, Frederick, and Jefferson counties if they approved the new West Virginia constitution as well). After much debate over whether Virginia had truly given its consent to the formation of the new state, the United States Congress adopted a statehood bill on July 14, 1862, which contained the proviso that all blacks in the new state under the age of 21 on July 4, 1863, be freed. President Lincoln was unsure of the bill's constitutionality, but pressed by Northern senators he signed the legislation on December 31, 1862. Luckily, the West Virginia constitutional convention had not adjourned sine die, and was called back into session on February 12, 1863. The convention amended the state's constitution on February 17 to include the congressionally required slave freedom provision, and adjourned sine die on February 20. The state's voters ratified the slave freedom amendment on March 26, 1863. On April 20, President Lincoln announced that West Virginia would become a state in 60 days.
Map of the political development of West Virginia. Counties in white are the original counties. Berkely County (red) and Jefferson County (dark blue) were the focus of Virginia v. West Virginia.But Berkeley, Frederick, and Jefferson counties never held votes on secession or the new West Virginia state constitution, as they were under the military control of the Confederacy at the time. On January 31, 1863, the Reorganized legislature of Virginia passed legislation authorizing the Reorganized governor to hold elections in Berkeley County on whether to join West Virginia or not. The Reorganized legislature similarly approved on February 4, 1863, an election for Jefferson County (among others). These elections were held, voters approved secession, and Berkeley and Jefferson Counties were admitted to West Virginia.
However, on December 5, 1865, the Virginia Assembly in Richmond passed legislation repealing all the acts of the Reorganized government regarding secession of the 39 counties and the admission of Berkeley and Jefferson counties to the state of West Virginia.
On March 10, 1866, Congress passed a resolution acknowledging the transfer of the two counties to West Virginia from Virginia.
Virginia sued, arguing that no action had taken place under the act of May 13, 1862, requiring elections, and that the elections which occurred in 1863 were fraudulent and irregular. West Virginia filed a demurrer which alleged that the Supreme Court lacked jurisidction over the case because it was of a purely political nature.
DecisionMajority holdingAssociate Justice Samuel Freeman Miller wrote the decision for the majority, joined by Chief Justice Salmon P. Chase and Associate Justices Samuel Nelson, Noah Haynes Swayne, William Strong, and Joseph P. Bradley.
Justice Miller first disposed of the demurrer. He concluded that the demurrer could not be granted "without reversing the settled course of decision in this court and overturning the principles on which several well-considered cases have been decided." He noted that the court had asserted its jurisdiction in several cases before, including The State of Rhode Island and Providence Plantations v. The Commonwealth of Massachusetts, 37 U.S. 657 (1838); State of Missouri v. State of Iowa, 48 U.S. 660 (1849); Florida v. Georgia, 58 U.S. 478 (1854); and State of Alabama v. State of Georgia, 64 U.S. 505 (1860).
Justice Miller then posed three questions for the Court to answer: :"1. Did the State of Virginia ever give a consent to this proposition which became obligatory on her? 2. Did the Congress give such consent as rendered the agreement valid? 3. If both these are answered affirmatively, it may be necessary to inquire whether the circumstances alleged in this bill, authorized Virginia to withdraw her consent, and justify us in setting aside the contract, and restoring the two counties to that State." Justice Miller then reviewed the various acts taken to reorganize the government of Virginia in 1861, and the various acts which the Reorganized Government and the United States took to create the state of West Virginia and extend its jurisdiction over the counties in question. In answering the first question, Miller wrote, "Now, we have here, on two different occasions, the emphatic legislative proposition 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 new-born State." There was no question, in the mind of the majority, that Virginia had given its consent. Although the elections had been postponed due to a "hostile" environment, the majority concluded that the Reorganized Government of Virginia had acted in "good faith" to carry out its electoral duties in the two counties.
In regard to the second question, Miller pondered the nature of Congressional consent. Congress could not be expected to explicitly give its consent to every single aspect of the proposed state constitution, Miller argued. And clearly Congress had intensively considered the proposed state constitution (which contained provisions for accession of the two counties in question), because Congress seriously considered the slavery question regarding the admission of the new state and required changes in the proposed constitution before statehood could be granted. This debate could only lead the Court to a single conclusion, Miller stated: "It is, therefore, an inference clear and satisfactory that Congress by that statute, intended to consent to the admission of the State with the contingent boundaries provided for in its constitution and in the statute of Virginia, which prayed for its admission on those terms, and that in so doing it necessarily consented to the agreement of those States on that subject. There was then a valid agreement between the two States consented to by Congress, which agreement made the accession of these counties dependent on the result of a popular vote in favor of that proposition."
Miller now considered the third question. The majority held that although the language of the two statutes of January 31, 1863, and February 4, 1863, were different, they had the same legal intent and force. Virginia showed "good faith" in holding the elections, Miller asserted. That the Reorganized Virginia legislature did not require vote totals to be reported to it and delegated the transmission of the vote totals to West Virginia was not at issue, Miller said. It gave the Reorganized Governor discretion as to when and where to hold the votes, under what condition the votes should be held, and to certify the votes. The legislature acted within its power to delegate these duties to the Reorganized Governor, "and his decision [was] conclusive as to the result." Were these votes fair and regular? The Virginia Assembly, Miller noted, made only "indefinite and vague" allegations about vote fraud, and unspecified charges that somehow Governor Pierpont must have been "misled and deceived" by others into believing the voting was fair and regular. Miller pointedly observed that not a single person was charged with fraud, no specific act of fraud was stated, and no legal wrongs asserted. The Virginia Assembly also did not claim that the state of West Virginia interfered in the elections. Absent such allegations, Virginia's accusations cannot be sustained, Miller concluded. But even if this aspect of Virginia's argument was ignored, Miller wrote, the Reorganized legislature had delegated all its power to certify to the election to Governor Pierpont, and he had certified it. That alone laid to rest Virginia's allegations. "[She] must be bound by what she had done. She can have no right, years after all this has been settled, to come into a court of chancery to charge that her own conduct has been a wrong and a fraud; that her own subordinate agents have misled her governor, and that her solemn act transferring these counties shall be set aside, against the will of the State of West Virginia, and without consulting the wishes of the people of those counties."