USA > Oregon > Multnomah County > Portland > History of Portland, Oregon : with illustrations and biographical sketches of prominent citizens and pioneers > Part 29
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"For a city of its size Portland has more large and successful printing establishments than any other city in the United States. The printing trade has known no dullness during the past year. The season's fulfillment has overreached most sanguine expectations, and business still holds ont with remarkable vitality. The opening day of 1890 finds 38 firms engaged in business, which invest the sum of $550,000, as against $500,000 for 1888, employing +10 men, as against 310 for 1888, with an output of $960,000, as against $686,500.
"The commendable activity and enterprise of the West is exhibited in no matter so clearly and emphatically as in seizing upon the advantages offered by the development of the powers of electricity. In this respect we are far in advance of Eastern cities of similar size, and Portland stands pre-eminent in availing herself of all the advantages that electricity brings. The whole of Portland and vicinity is illuminated at night by electricity, and well lighted at that. The excellence with which the city is lighted at night is more effective in the prevention of crime than even the watchful and
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efficient police force. In electric lighting, the main feature observ- ant during the past year has been in the large increase of lights placed in private business houses. The increase in this line has been remarkable, and the service on the whole has been satisfactory.
"By far the most important use to which electricity has been put during the past year has been in using it as the motive power on several street railway lines.
"Careful investigation shows that each of the following industries have increased during the year 1889, both in the number of employes and in the total value of our out-put: Car shops, ice works, uphol- stering, coffee and spices, plumbing, bakeries, oils, shoes, furs, book- binding, wood-carving, matches, trunks, drugs, show-cases, watch- maknig, rubber stamps, signs, knitting socks, gloves, type metals bottling, marble work, brass, cigars, iron cornices, stoves, stairs, art glass, cabinet work, shoe-uppers, patent insides, paper boxes, wire springs, tanning, iron fences, fringe, umbrellas, electrotyping, wood fences, fanning mill, etc."
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HISTORY OF PORTLAND.
CHAPTER XI.
THE BENCH AND BAR.
Oregon Under Canadian Laws-Efforts of the American Settlers to Organize a Judiciary-Peculiar and Comical Features of their Proceedings-The first Judiciary System-Re-organization of the Judiciary by the Provisional Legislature of 1845- Early Judges and Attorneys-Manner of Adopting the Laws of Iowa-Status of the Courts Prior to Territorial Government-First Court House at Portland-Establish- meut of Office of Recorder, and Other City Judicial Offices-List of Recorders, City Attorneys, Police Judges and Justices of Peace-Re-organization of the Judicial System after the Creation of Oregon Territory-Incidents in the Administrations of Justice During Territorial Period-First Term of the Supreme Court-Organization of Multnomah County Court-Sketches of Leading Attorneys of Portland Prior to 1855-Interesting Cases before the Supreme Court-Organization of the United States District Court-Portland Attorneys after the Admission of Oregon as a State- Re-organization of the Judicial System of the State in 1878-Judges who have Served in Portland and Multnomah County Courts-Cases of Historic Importance Tried Before Portlaud Courts-United States vs. Randall-The Holladay Cases-List of Attorneys who have Practiced at the Portland Bar.
THE origin and development of the Courts and the law in this community afford a striking illustration of the adaptability of the American people to the necessities of their condition, and their natural aptitude for State building and self government. Would the scope of our work permit, it would be interesting and instructive to follow in detail the various steps taken by the pioneers of Oregon in creating a civil polity for themselves without adventitious aid or the supervising control of a sovereign government, and to show how the diverse and often conflicting influences of religion, nationality, heredity and individual environments were blended and coalesced into a practical system of laws. But our present purpose is to describe the Bench and Bar of Portland, and reference to the growth of the legal and constitutional organism of the State is necessary only as it shows the conditions under which the Courts and the law in the city are to be viewed.
The operation of the laws of Canada was, by Act of Parliament at an early day, extended to include the English subjects on the Pacific Coast, and three Justices of the Peace were commissioned, one
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of whom, James Douglas,1 afterward Sir James Douglas and Governor of the Hudson's Bay interests for a short time before the United States extended its jurisdiction over the Territory, resided at Vancouver and exercised his duties as .Justice there until the provisional government was organized.2
The protestant missionaries, likewise, appointed a Justice of the Peace, but the cases that came before these officers for adjudication were rare and of little importance. The settlers were so few in number and so widely scattered that Courts were not often needed. With these exceptions there was no attempt to organize a judiciary in the Northwest until in 1841.
At that time the American settlers in the Willamette Valley were anxious that the government of the United States ex- tend its sovereignty over the Oregon country and establish a system of local laws and government, but to this the sen- timent of the French and Canadian settlers was more or less openly hostile. Ewing Young, who had been an active and promi- nent figure in the settlement and had, after a life of adventure and roving, accumulated a small estate, chiefly by a successful enterprise in driving from California a herd of cattle, died at his home near the present site of the town of Gervais, and the advocates of a local government found a convenient pretext for the consummation of their plans in the absence of probate courts and laws to regulate the administration of his estate. A meeting was held by the settlers, after the funeral, at Young's house, which, after appointing a committee to draft a constitution and a code of laws and recommending the creation of certain offices, and, in committee of the whole, nominating persons for those offices, adjourned until the next day. In accordance with the adjournment a full meeting was held at the American Mission House on the 18th day of February, 1841, and, among other proceedings had, I. L. Babcock was elected Supreme Judge, with probate powers.
1 Douglas was elected by the Legislature of 1845 one of the District Judges of the Vancouver District.
2 Under this act the Justices had jurisdiction to the amount of two hundred pounds sterling, and in criminal cases, upon sufficient cause being shown, the prisoner was to be sent to Canada for trial.
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HISTORY OF PORTLAND.
The peculiar and comical feature of this proceeding was in the adoption of a resolution at this meeting instructing the Supreme Judge to act according to the laws of the State of New York until a code of laws should be adopted by the community. One historian affirms that at the time there was not a copy of the New York Code in the settlement,3 and certainly there was not more than one.
The judge was a physician, connected with the Methodist Mission, who had perhaps never read a law book. By some adverse fate the projected government was never finally organized as intended, but Dr. Babcock was subsequently elected a Circuit Judge, and, at the time the first houses were building in Portland, he was holding court in the Clackamas district and occasionally in the district which included the present county of Multnomah.4 Another attempt at forming a provisional government was made in 1843, with the result that an Organic Law, somewhat rudely framed upon the ground plan of the Ordinance of 1787, was adopted by the people at a public meeting held July 5, 1843.
In the meantime, while taking the preliminary steps toward organization and the adoption of laws, at a meeting held on the 2d day of May, 1843, at Champoeg, A. E. Wilson,5 was selected to act as Supreme Judge, with probate powers, and a number of magistrates were elected. By the adoption of the judiciary system proposed at the same meeting by the legislative committee, these officers were continued in office until their successors should be elected, and a general election was provided for on the 2d day of May, 1844.
The territory was organized into four districts for Judicial purposes, the First District, to be called the Tuality District,
3 Gray History of Oregon, page 201. Wells History of the Willamette Valley, page 243.
4 The estate of Ewing Young was without an administrator until in 1844, when the Legislature authorized the appointment of one. (See Laws of 1843-1849, pub- lished in 1853, page 94). Several suits were brought against it, in one of which, the name of the administrator was omitted, and the estate itself was sued; the judgment was reversed on this ground, and this was one of the earliest cases in which an opinion was written by the Oregon Supreme Court, contained in Vol. I, Supreme Court Records, page 90. A. L. Lovejoy was the administrator. The Legislature subsequently
Richard wurde any
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comprised all the country south of the northern boundary of the United States, west of the Willamette or Multnomah River, north of the Yamhill River and east of the Pacific Ocean.
This arrangement, however, was altered by the first Legislature that met pursuant to the provisions of the organic act, in June, 1844, and the whole fabric of government was remodeled. So far as the judiciary was concerned the change was chiefly in vesting the judicial power in Circuit Courts and Justices of the Peace, and providing for the election of one Circuit Judge, with probate powers, whose duty it should be to hold two terms of Court annually in each county. Justices of the Peace and other officers were to be elected, and their duties were defined.
Babcock, who had been elected Circuit Judge in May, 1844, defeating by a considerable majority, J. W. Nesmith, P. H. Burnett, P. G. Stewart, Osborn Russell and O. Johnson, resigned the office November 11, 1844. He was succeeded by J. W. Nesmith, who held his first term in April, 1845, at Oregon City.
The Courts were now fully and properly organized, but there were no suits of importance at this period. Almost all the cases were heard before the Justices of the Peace and no record remains. The earliest record of any case in the Supreme Court arose from the district in which Portland was included, between two farmers who came to the territory with the large immigration of 1843, and located in the prairies of Yamhill County. It seems that among the cattle brought overland in that year in great numbers by the settlers, Ninevah Ford and Abi Smith each had several head, but when the valley was reached these had dwindled down in number, by the
ordered a sale of the property and the use of the proceeds to erect a log jail, pledg- ing the return of the money to any heirs of Young that might establish their claim. It may be added that heirs did appear and claimed the property, but afterwards assigned the claini, and several unsuccessful efforts were made to collect the money from the State, until finally by Legislative action the full sum and interest was paid.
5 Albert E. Wilson was an intelligent, unassuming and excellent young man, who came to the country in the employ of Caleb Cushing, of Massachusetts, in company with Captain Couch, on the Chenamus, and was left in charge of the stock of goods, brought out by that vessel, at Oregon City in 1842. He was not a lawyer by education.
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hardships and short rations of the journey, and both Ford and Smith claimed the ownership of a certain pair of oxen that remained. Ford had the cattle and Smith brought suit for their possession and npon trial before two Justices of the Peace, sitting as a Supreme Court, in April, 1844, a verdict was returned by the jury in favor of the plaintiff.
The Legislature that was elected in 1845, under this new scheme of government, at once appointed a committee again to revise the Organic Law, and then it was that the fundamental act which is generally referred to as creating the Provisional Government, a model of statecraft, and upon which the State Constitution of Oregon was afterwards constructed, was prepared, and subsequently ratified by the people at an election held July 26, 1845.
By the eighth section of Article II of this instrument, the judicial power was vested in the Supreme Court and in such inferior Courts as might, from time to time, be established by law. The Supreme Court, consisting of one judge, to be elected by the House of Representatives for the term of four years, was given appellate jurisdiction only, with general superintending control over all inferior Courts of law, and power to issue certain original remedial writs and to hear and determine the same. The Legislature might also provide for giving the Supreme Court original jurisdiction in criminal cases.
The Legislature elected Nathaniel Ford, of Yamhill County, Supreme Judge at its meeting, August 9, 1845, and passed various acts creating district, probate, criminal and justice courts, electing B. O. Tucker, H. Higgins and Win. Burris, District Judges of Tuality County. Nathaniel Ford declined to accept the office of Supreme Judge and the House elected in his stead Peter H. Burnett.
Burnett had come to Oregon in 1843 from Missouri, where he had been District Attorney, and with General M. M. McCarver, afterward Speaker of the House of Representatives, had located and laid out the town of Linnton, on the Willamette, and lived there in the early part of 1844, but in May, 1844, he removed with his family to a farm in Tualatin Plains near Hillsboro. He was one of the
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Legislative Committee in 1844, and again in 1848." Burnett was perhaps the ablest lawyer of this period of Oregon History, but as he says,8 there was nothing to do in his profession until some time after his arrival in Oregon and he was therefore compelled to become a farmer. He held the office of Supreme Judge until December 29, 1846, when he resigned the office.9 Elected to the Legislature of of the Provisional Government, in 1848, he again resigned, this time to go to California, where he received a commission from President Polk, dated August 14, 1848, as one of the Justices of the Supreme Court of Oregon, under the Territorial organization. This cominis- sion he declined, and in August, 1849, was elected Judge or Minister of the Superior Tribunal of California.10 On the organization of that State, he was elected Governor, and subsequently became a banker at San Francisco.
When Judge Burnett opened Court, June 2, 1846, at Oregon City, three attorneys were admitted to the bar:" W. G. T. Vault, A. L. Lovejoy and Cyrus Olney.12 These were the first attorneys regularly admitted to practice in the Supreme Court in Oregon, though others were in the Territory and had practiced before the inferior Courts, and of these three, two of them, A. L. Lovejoy and Cyrus Olney are identified in no slight degree with the history of the Bench and Bar of Portland.
Both Pettygrove and Lovejoy, the original Portlanders, were versed in the law. Pettygrove was a merchant at Oregon City and served as Judge of the District Court, in the Clackamas District in 1844 and 1845, resigning his office in December, 1845.13 Lovejoy was one of the first lawyers that came to the territory, and from the
6 Burnett's Recollections, page 193.
8 Burnett's Recollections, page 181.
10 Burnett's Recollections, page 339.
7 Gray's History of Oregon, page 374.
9 1 Sup. Court Record, page 2.
11 1 Sup. Ct. Rec. 52.
12 A. A. Skinner was also an attorney of the Court and these with Judge Burnett, after his resignation as Judge, were the only attorneys admitted to practice until June, 1848, when Samuel R. Thurston, Aaron E. Wait and Milton Elliott were on motion admitted to practice, (1 Sup. Ct. Rec. 98), these were the only at- torneys admitted to practice in the Supreme Court before the organization of Oregon Territory. 13 Or. Archives, page 129.
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HISTORY OF PORTLAND.
first his name is associated with public affairs. He was a very positive character, firin and often extreme in his opinions, but was a man of many good qualities. He lived but a brief time at Portland, though he always took an interest in its affairs. In his earlier years in Oregon, particularly in the days of the provisional government, he was an active practitioner, and frequently served as Prosecuting Attorney14 and as a member of the Legislature, and was the first regular Democratic candidate for Governor of Oregon under the provisional government, but as he grew older he devoted himself to the quiet of farm life near Oregon City, where he died 1882. A sketch of his connection with the founding of Portland is presented in a preceding chapter.
The first business before the Supreme Court, and the first written opinion of which there is any record, was in reference to an application of James B. Stephens for a license to keep a ferry across the Willamette at Portland, which was denied on the ground that the statute conferring the power to grant licenses upon the Supreme Court was unconstitu- tional as in contravention of the provisions of the Organic Law which gave the Court appellate jurisdiction only, except in criminal cases. The only other business done at this term was in a case wherein John H. Couch, of Portland, was plaintiff.
After Judge Burnett resigned, J. Quinn Thornton was appointed Supreme Judge, Feb. 9, 1847, and held his first term of Court at Oregon City on the 7th day of June, 1847. He was succeeded again, after holding two terms, by Columbia Lancaster, who also held two terins, the June and September terms in 1848, at Oregon City.
The Legislative committee that met at Willamette in May, 1843, to prepare an Organic Law, at their meeting, May 19, provided for the appointment of a committee of three, to prepare and arrange the business done at that session and revise the laws of Iowa.15 This was the first suggestion of the use of the Iowa Laws in Oregon. The committee having reported the laws as revised by them, they were adopted with some modifications at a subsequent meeting.16 The
14 Sup. Ct. Rec., page 10.
15 Or. Archives, 19. Gray's History of Oregon, 344.
16 June 28, 1843. Or. Archives, 23, 24.
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same body also adopted a resolution to purchase several law books of James O'Neil to be the property of the community, and though it is not positively known, it is believed that among these books was the only volume of the Iowa Code then in the colony.17 At any rate, at the public meeting of the people July 5, 1843, this report of the Legislative committee was adopted, and it was, "Resolved, That the following portions of the laws of Iowa, as laid down in the Statute Laws of Iowa, enacted at the first session of the Legislative Assembly of said Territory, held at Burlington, A. D., 1838-39; published by authority, DuBuque, Bussel and Reeves, printers, 1839, certified to be a correct copy by Wm. B. Conway, Secretary of Iowa Territory, be adopted as the laws of this Territory; viz: etc."
The book was brought to Oregon in 1843; it was called the "blue book," and was bound in blue boards. On the 27th of June, 1844, the Legislative Committee adopted an Act "Regulating the Executive Power, the Judiciary and for Other Purposes," of which Art. III, Sec. 1, was as follows: "Sec. 1. All the Statute Laws of Iowa Territory passed at the first session of the Legislative Assembly of said Territory and not of a local character, and not incompatible with the condition and circumstances of the country shall be the law of the government, unless otherwise modified; and the Common Law of England and principles of equity, not imodified by the Statutes of Iowa or of this government and not incompatible with its principles, shall constitute a part of the law of the land."
After the Organic Law had been remodeled in 1845, and the Legislature convened in August of that year, it was deemed advisable to re-enact the Iowa Laws, lest any doubt of their binding force under the new provisional governinent be entertained, and accordingly a bill for that purpose was passed, August 12, 1845.16 At this time there was no printing press in Oregon, and though many laws were enacted it is not to be presumed that they were very widely promulgated, and perhaps the maxim that ignorance of the law excuses no one, would, under the circumstances, prove severe in
17 Thornton, Or. and Cal. Vol. II, page 31.
Or. Archives, page 101.
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application. 19 But, again, on the organization of the Territory in 1849, under the laws of the United States, the same question as to how far these statutes were the law of the Territory, was raised, and in order to settle any doubts as to the law, a similar statute was enacted by the Territorial Legislature at its first session, September 29, 1849. In the meantime the addition of 1843 of the Code of Iowa had found its way to Oregon, which also was bound in blue board covers. This book now became familiarly known as the "Blue Book" and the former edition as the "Little Blue Book."20 The act, adopting this edition, provided for the substitution of the word "Oregon" for" Iowa" wherever it occurred in the Iowa Code of 1843, and directed21 that the laws with certain changes "be indexed and published after the manner of the Iowa Laws of the date aforesaid, to which shall be prefixed the Declaration of Independence, the Consti- tution of the United States, the Ordinance of 1787, the Constitution of the Provisional Government of Oregon, and the Organic Laws of Oregon Territory. ''22
19 The Oregon Spectator, the first Oregou newspaper, appeared at Oregon City in 1845, and this paper contained the only publication of the Statutes from time to time until 1851.
20 Bancroft, Vol. XXIV, page 435.
21 Laws of 1843-49, published 1853, page 103. At this time there was a great controversy as to the constitutionality of an act locating the State Capital and other institutions, aud Judges Strong and Nelson siding with the persons who opposed the location of the Capital at Salem, hield the statute invalid as relating more than one subject, not expressed in the title thereof. Judge Pratt decided that the act was valid and held Court at Salem. This code was nicknamed the " Steamboat Code" by Amory Holbrook, then District Attorney, and the title was adopted by many who sided with Judges Strong and Nelson, the soubriquet deriving its piquancy from the fact that the statute adopting it was loaded with miscellaneous provisions, not specifically indicated by the title. Judge Pratt at the request of the Legislature submitted an opinion in writing to that body advocating the constitutionality of the act. In the Winter of 1853-54 the new judges of the Supreme Court appointed in the meantime, held the act valid.
22 This publication was prepared for the Territorial Secretary, Geu. Edward Hamilton, by Matthew P. Deady, and contained only those parts of the Iowa Code generally recognized as the law in Oregon, and in January, 1853, an act was passed authorizing the collection and publication of the statutes of the provisional govern- ment not published in that volume. This is entitled "Oregon Archives," and was edited by L. F. Grover. In the same sessiou of the Legislature, a commission
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The peculiar status of the Courts at this period, is expressed by Judge Deady, in the case of Lownsdale vs. City of Portland, decided in 1861, in the following language, which was afterward quoted with approval by the Supreme Court of the United States in the case of Stark vs. Starrs:23
"It is well known that at the time of the organization of Oregon Territory, an anomolous state of things existed here. The country was extensively settled and the people were living under an indepen- dent goverment established by themselves. They were a community in the full sense of the word, engaged in agriculture, trade, commerce and the mechanic arts; had built towns, opened and improved farms, established highways, passed revenue laws and collected taxes, made war and concluded peace."
In the case of Baldro vs. Tolmie (1 Or. Rep. 178), the territorial Supreme Court, after the provisional government was superceded, speaking through Williams, C. J., said: "Confessedly the provisional government of this territory was a government de facto, and if it be
23 6 Wall, U. S. 402.
consisting of Messrs. J. K. Kelly, R. P. Boise, and D. R. Bigelow was appointed to draft a code, this was, by Judge Olney's influence, separated into statutes on various subjects before being adopted as a code. It was printed in New York, and after about 100 copies had been received in Oregon the remainder of the edition was lost in the wreck of a vessel bringing them via the Upper Columbia. Another edition was authorized in 1854-55 in which was incorporated, as a supplement, the statutes adopted at that session of the Legislature. In 1860, A. C. Gibbs and J. K. Kelly were appointed a commission to draft a civil code, but on the election of Gibbs as Governor, the two commissioners appointed Matthew P. Deady, who was then Judge of the District Court of the U. S., to assist, and the work was done by him and adopted by the Legislature of 1863. This was a laborious task, as the alterations necessary on account of the change from Territory to State and the alterations of counties, courts and practice required much detail work. The same Legislature then authorized the compilation of a Criminal Code by Judge Deady, which he accom- plished, and reported his work to the Legislature of 1864, which adopted it without change, Judge Deady reading it through on the last day of the session himself in the Senate to insure its passage, as lie was a very rapid reader, and could read for several consecutive hours without rest. Deady was then authorized to compile for publication anew all the codes and laws, and this was published under his supervision, in 1864, he reading the proof. In 1872, the Legislature authorized Judge Deady and Sylvester C. Simpson, a member of the Portland bar, to collect and arrange the laws with
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