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3B3BLSlSX KggSrsyPSvnty? rsJ .AAs2h4s le, ,g.'i'i jJ.'. , Jtigl'.-.J. .!'.; .'
&l)c iU;cliirs Enterprise.
Oregon City, Oregon,
Frid? P : : Harc-h 10, lo71.
Judge Boise's Decision.
Ofclsowhere we publish Judge Boise's
decision in the mandamus case of D. F
Brown Vs. L. Fliesebner. State Treasurer.
Our readers t ill remember that the last
Legislature appointed a Commission to
examine and audit certain warrants thai
bad been Hsued dining the last two years
of Woods' administration. The Commis
sion findin;; a large nuuiber of unjust ane
illegal warrants in circulation, cut som
dun to what they deemed just and right
and others were rejected entirely. Mi
Brown purchased certain of these war
rants, and the Commission not auditing
them, the State Treasurer very properly
refused payment. This action was brought
to compel the Treasurer to pay these
Warrants in f n 11 and also to test the legal
ity of tbb action of this Commission. It
ill be observed that Judge Jiot.se not
'6nly .sustains the legality of the uction of
the Legislature and the Commission, but
virtually decides that all warrants issued
by the Secretary of State while there wa
no appropriation, -we're illegal and with
out authority of law. This decision is of
special importunes from the fact that it
comes from a Republican Judge, and by
whom the late Governor expected to be
endorsed in his revolutionary measure in
freaking up the quorum of the Legi-da-ture
of 18(iS. It will also protect
-ott State Jrom a repetition of a similar
'Outrage, and learn an unscrupulous Exec
utive that lie cannot carry on the Slate af
fairs and pledge the credit of the people
s:s he in iy desire. Judge Boise plainly
indicates uhat the duty of the Governor
was when the members resigned (who did
so through his solicitation.) It was Lis
sworn duty to execute the laws, and one
"of them was to issue writs ot election and
'convene the Ije.gi.sl.it lire in special session
in order that he might have the necessary
appropriation made to enable him to car
ry out his solemn duty. But instead of
doing his duty, he counseled the Radical
members to resign, and he himself ac--cepted
the resignations, and then threw
himself on his dignii v, ami declared that
O
lie yould and could run the.Stule lor two
jeairi without money. The result ot this
little experiment is apparent. After this
pruning" of Slate warrants, it has cost the
tax payers thousands and thousands of
'dollars. Jf the Radical party had no oth
erQm to atone for, this terrible outiage
alone should bar them from all future
trust and confidence. We a.sk a careful
reading of this document, and hope that,
our friends will pass it around among
bcir Radical neighbors. It is Radical
0 and not Democratic authority, and most
emphatically sustains the position of the
l)emocracy in this matter.
Hather Eeifbh.
Under the head of various rumors, the
.Albany Br.jister, of a recent date, ptib
lishi'3 a report to lb effect that the we.-t
hide rai'road would cross at that place,
and adds : "If one line of road can do
all the business that will be offered, then
certainly there will be no necessity el
building atjjadditi anal road nearly fifty
miles iiJength, at a vast expense, merely
for (Uf5 name of two roads.'-' The editor
of the ltrtjisltr is either totally ignorant
of the necessities of the people of the
southern end of the v 'Hew or he is too
Selfish in behalf of his own town. Albany
aboi.t onc-hulf the distance up the val
ley. This diversion of (he west side road
vo9il leave Benton and a greater part of
Lane county in as bad a condition for
transportion of produce as they have been
heretofore. The need for a load on both
o
.ides of the river south of Albany i
if
anything, greater than north. Boats can
to a
reat extent, take the products away j
IrOu both sid
of the river this side of !
Albany, while navigation s limited above
Corvallis. (ten miles s-utlt of Albany) to
very few mouths in the year. There is
no liner country or more productive under
Ihe sun than that which lies on both sides
of the Willamette from Albany to Eugene
City, a distance of filty miles, and the
railroad can be of no earthly benefit only
to the side on which it runs. It will not
be "building fifty miles of road for mere
ly (he name of having two roads,'' but it
will supply an actual necessity for which
that end ot the State is suffering,' and
which can only be supplied bv two roads.
One on each side of the liver, the entire
length of the valley. The enoriU Mis cost
spoken of, is the expense of iron and the
laying of Ihe track, as nature has already
d me the grading. While we desire that
Albany should prosper to its fullest ex
pectations, we think it very selfish to wish
prosperity Qxt the expense of so large a
teetion of country as that on the west
side between that town and the head of
the valley. We say emphatically that no
nneetion this side of Eugene City ought
to be m ole. If (here are two road-; need
ed in the Willamette Valley, smith of Al
bany is the place as much as any other
We hope our friend of tin .'".'.ser will
become more generous and give his em
srit for the people of the whole v
's! side
.
to enjoy the blessings ol a lailroad.
SdJ.i:.ci:p. Doth ,f the Jacksonville
papers aro silence in regard to the out
rage perpetrated in that place. We can
not see w hy tfPis silence is maintained. It
is the duty of a journalist to expose the
ve9ng whether it effects friend or foe and
no paper is entitle to respect which has
not this independence. It is stated that
Mr. Fay himself is editor of the Times.
and lhat Mr. Watson, of the Stniinrl, has
been retained by Mr. Fay as attorney.
This is a matter rui which no prper can be
silent and claim respectability.
The Oregonian could not find room for
Judge Boise's decision. I,' it were one of
Judge IVady's and in harmony (which
they nUvr.vs are. as the editor has none
independent of the Judge's) with the edi
tor of the OrrjonUni, there would have
been no trouble about finding room for it.
The Oregnnian will probably soon com
mence another crusade against. Judge
Ijjj'w. That panor has no Iov for bim.
Death of Hon. Lansing Stout.
it is with much sorrow that we ara com
pelled to announce the death of Hon
Lansing Stout, of Portland. He died at
his lale residence in that city, after a long
and painful illness, on Saturday evening
last, a lew minutes before 7 o'clock. The
news fell upon Portland, as it has through
'he entire State, wi:h deep sorrow and
every measure was carried out by the
citizens of Portland to show their appre
ciation of the distinguished and beloved
lead. There are lew men in this Slate
.vho possessed as many warm and sincere
riends as Mr. Stout. He was gifted with
hat peculiar talent of always making all
villi whom he came in contact lis friends.
Mid no man can say that he ever betrayed
iieir friendship or confidence, lie was a
rue. generous and high-minded man. an
.flectionate and loving hu.-band, and one
of Oregon's most enterprising citizen,
and while his death will be m ist severely
felt by his family, who are the greatest
afflicted by this visitation of Providence,
their sorrow and loss is shared by the
people of the entire State.
Mr. Stout came to Portland in 17,
and engaged in the -pioctice of his pro
fession, the law. He was elected soon
after his arrival in the State to the ofiice
of County Judge of Multnomah county,
and while filling that position, in 1S5S,
he received the nomination from the
Democracy as their candid. ite for Con
gress, to which position he was elected by
a close vote, after a most warmly contest
ed campaign, conducted almost exclu.-ive-ly
by himself. He served the people in
that capacity with marked ability, and
one of the great measures he succeeded
in obtaining, was the great overland mail
service from Sacramento to Portland.
While he Was at Washington, he became
acquainted with the most excellent lady
who is now left his rereaved widow. Af
ter his term in Congress expired, he re
in lined in Maryland a few months visit
ing the friends and relatives of his wife.
In lSG.'i he again returned to Portland and
resumed the practice of his profe.-si m.
As an attorney he had few equals, while
he had no superiors. In while Mult
nomah county was largely Republican, he
was nominated for State Senator, and
through l.is influence probably more than
any other man, that comi'y Was carried
by the Democracy. He had served two
teimsas State- Senator, and while he was
in feeble health during the last session
and confined to his bed a great portion of
the session, no member did more or ex
erted a greater influence in that body.
1 1 is remains were interred last Monday
in the Catholic cemetery, of which Church
he was a member, the remains being fol
lowed to the grave by the entire legal
fraternity of Portland, and a delegation
from the various fire companies, and a
large concourse of mourning friends. lie
leaves a wife and four children, two boys
and two girls, who have, though it can
not restore to them the husband and
father, the sympathy of the -people of our
entire Slate n this their greatest earthly
affliction. Peace be to the noble spirit of
Lansing Stout.
H3
Mart Drown, oi itie Albany Democrat.
and State Printing Expert, has been in
town several days, measuring the work
done by the present State Printer. T Fnt
teisoti. H-q. lie reports the work done
in'iiiiteiy better than in l.-08.und at about
tin; same cost, and that the material is bet
ter, and only (18 pages more tf the lav;s
of '7U than of "(its. but that the journals of
'7; ate more than twice as large as those
of "118.
The above is copied by the Unlhtin and
made an excuse for an attack on the State
Printer, cb t'g'ng him with fraud. S:c. It
will be observed from the above that
j while
the joiirntls are over twice as
! large this year us they were in 1 S i 1 S . and
the laws about CO pages, and the material
used better,'' it has not cost the people
any mote than the printing did in 18(18.
It the State Printer docs twice the amount
ot' wn,'k r,)I' tij-' V:T- 1UiU !'e is pub
j''c'- !o tlle charge of peculation, we ask
these watch dogs what were the former
Printers guilty of when they drew from
the State Treasury the same a:u:uut for
half the work performed ? We do no!
desire to defend the Slate Printer, know,
iug that those who audit his accounts will
protect the interests of the State. But
these Radical and gaonndless charges are
becoming disgusting as well as dishonor
able. The Printing j'or 1870. though if
bus been more than in 18(18. has not cost
i lie State as much. We were talking with
a practical printer on this subject a few
days since, who had examined the work
of the State Printers for (he past, ten
years, and he informed us that the work
done by .Mr. Patterson was the leanest '
of any that had ever beet) executed. The
charge of fraud does not apply to Mr. 1
alone, but alsj to the parties who are to
examine the work and audit his accounts
and as they are utterly groundless, mast
eventually result in branding the authors
with willful and malicious lying.
A Small Tuu'K. A tew months ago we
pubiisheel Ihe fact that Capt. Norton hail
been appointed postmaster at Eagle
Creek, in this county, an uflice which bad
nearly become obsolete, owing to the fact
that it was not of sufficient importance
for any one to attend to it. The Captain
is a good reliable ci'izen. but unfortun
ately, a Democrat. This fact was forth
with communicated by seme of the Radi
cals of this town to Senator Williams, who
had the Captain removed and another ap.
pointed. The person who has been rp
pointed has heretofore toted the Demo
cratic ticket, and it is altogether probable
that when Wiliiams learns this fact, his
head will Come off. Meddling in such
small matters as this is about as low as n
. High Commissioner'' can get.
The ' independent "; organ at Portland,
w hich is making an effort to excuse a cer
tain horrible crime, is fearful for tiie peace
of Ihcse papers which have dared to say
a word in condemnation. It is not at all
probable that any of them vfill cease their
denunciation cf crime on account of the
solicitude of this individual.
Coxgukss. By reference to the dis
patches pubiisheel this week, it will be
seen that the closing hours of the 41st
Congress were mot disgraceful.
The Mandamus Case-
B. F. Brown. Petitioner, vs. L- Flieschner.
State Treasurer. Defendant.
The petition states that the petitioner is
the owner and holder of five State war
rants, drawn by Samuel E. May. late Sec
retary of State." on thts Treaiisurer of the
Slate", which wa- rauts were drawn to the
following named persons, to-wit: War
rams Nos. ll-lo and 1125 to S. Rundoleth
or order, for ihe several sums ot SLKJJ and
818 ). on tin; Penitentiary Fund; No. 814
to 11. H. Bancroft & Co
sum of 8355 28. on the
or order, tor the
Incidental Fund:
No. 722 to Oliver ivell or order. lor
the sum of S'J'.'t 00. on the Penitentiary
Fund; warrant No. 'J 10 to Joseph Ilohuan.
or order, for the sam of 5JJ on the Inci
dental Fund.
These warrants were all drawn during a
period white there was no appropriation
made bv law to defray the current expen
ses ot the State Government, the
tore of 18!8 having adjourned
Leg is
a
without
pa"iag anv general approphvioa bill,
which left the State without legislation m
that m itter. until an appropriation wa
inade at the next regular session in ls-70.
And it is claimed by the respondents, that
these warrants, when drawn, were wholly
unauthorized by law. for it is contend
ed the Secretary can only draw a warrant
on a fund, set 'apart by law for its pay
ment; and in support ot this position they
refer to the Conuutioa and laws of the
Slate.
In Art. 0. Sec. 2. of the Slate Constitution,
it is provided that. "The Legislative as
sembly shall provide for raising revenue
sufficient, to defray the expenses of the
St;t3 for such fiscal ycu'r, and also a suf
ficient sum to pay the interest, on the pub
lic elebt. if there be any."' Section 4. id'
the same Article, says: "No motley shall
be drawn Innn lite Treasury, but in pur
suance of appropriation made by law.''
Section 7. id same Article, says: "Laws
maiting appropriations lor salaries ef pub
lic officers and other current expenses of
the State, shall contain provisions on no
other snt'jeeis.'' These are t tie pro visions;
of the Constitution on this suljeet. The
StiMute of Oregon, p ige H21, Section 15,
provide.; "The Secretary of State shall
superintend the fiscal concerns of the ;
and manage the same in ihe manner
state,
pro-
vided by law.'-
Sub-division 7. of the same section says
it is his duty
a examine and determine
the claims oi' persons agains
eu-es where pnvixions fitr Ha
;t the State, in
' jl ljJDlClit Ihct t-
of skull have bieu inude bj law, and to en
dorse upon ihe s.utu amount due and al
lowed thereon, an 1 from -hat fund the
s-titie is l' be p ltd. atid draw hi- waraiil up
on ihe Treasurer for the same."
It seems to me there can be but one de
duction irum thesi; piovisious of the Con
stitution, as to the manner in which - the
money of the State should be d.sbursed.
and that is, by an appropriation by law.
And in the clauses just quoted, from, the
Statute, (ieiiiii-g ihe powers and duties of
the Secretary of State, and directing the
m inner ot their execution; it is equally
clear that the Legislature, did not intend
that claims aguiust Ihe State should be au
dited and allowed, except in cast's where
provisions for their payment had been
made by law. The Statute is very ex
plicit II says: -To examine and de'er
in iae the claims of ail persons against the
State in cc.tes whej'e provisions for the-puy-rient
thereof shall have been made by law,
and to endorse upon the same ihe amount
due and al.o.ved thereon, and from what
fund the same is to be paid." He had
therefore no authority to audit and allow a
claim, against the Sta e, for the payment
of w hich no provision had been ma.de by
law; and it was impossible
tor him to en-
dorse on a claim the fund out ot u
ic.
it
was to be paid, w
for the only way
hen. no such fund existed,
in which :.uuh funds can
be created is by an appropriation by the
legislature.
Pei sons who have claims against Use
State, have no way of prosecuting them to
seii lenient and payment, except as provid
ed by law; and in this case the Legislature
faiilcd to make the necessary provision.
ll is claimed that u;ii ess the Secretary
had
proceeded iii tins mater, parties
would have been v, it hou t reined y and ' hat
Ihe p
have
ibiic
nstitutions of the S'uo; would
been
mca.n.toie o! periormmg thetr
proper tunctious; mat use prisone
in (he
penitentiary must have been set at lib. r.y,
an 1 tlie insane turned upoo the community,
'i hese would have been dire calamities, iu
det'd. and needed a remedy; but the reme
dy w as not wiih the Secretary of State.
He had no more power to right the dis i
nter snip o: Mate man a private ci.i, 'n.
lite routed v was witn trie legislature, j lie
u-'lli I l
Constitution has confided to their special
charge the direction id' the disborsment of
the revenue, and they were sworn to sup
port the Constitution and perform its re
quirentets. and it they failed to pass an ap
propriation bill, an'd ahjoarnod. or ceased
to
have a n
uorum
then ih- executive h td
le author;
te writs o
y. muter
1 CleCitOtl
die Consii ' utioti. to is
iitiil con vein; thcfLeg-
islature in extra session to provide fortlrs
emergency. Here was a plain and legal
remedy for the evil, and the only remedy
which existed under the Constitution.
We are no! to presume that the Legisla
ture would still have failed to make pro
vision tor the eunont expenses of the gov
ernment, for such ti presumption assumes
that one form of a government will not
execute its function, and is a failure, and
must give way to some other form th it has
snfi'cient vitality and force to perpetuate
its own existence.
To hold that when the Legislature have
failed to provide funds tor the public ser
vice, some ntlit."' oflicer (acting under the
coutro and in accordance with laws w hich
they alore can enact) can assume the higfi
ievponsibi.ity. an i without the u hority of
law. pledge lit credit of the State wii'iout
limi'. would be without precedent, and
su li ver.-ive of I he in ml a mental principles of
the (Jovernment. Thi. doctrine would in
vest the Secretary, who is an administra
tive oflicer. wiili some of the highest pre
rogatives of the Legislature, in conferring
on him power to control the disburse
ments ot the public iunus. anil pieUge the
public credit. It is assumed that these
warrants became at the time they were is
sued leg tl inver.-lble claims against the
S'ate. and payable cuit of the funds on
which ll.ey were drawn, and that ihe State
is bound to pay them: that they are of as
high authoritity as bonds, and that the
credit of the State is pledged to them n
the same d "gt ee.
Ponds were created by law. and issued
in accordance with it. These warrant s. 1
think, had no law to support them when
they were is-ued.
D is claimed that, being drawn to order,
they are to be lespeeted in the hands of
innoccent holders Had they been is-ued
in pursuance of a regular appropriation. I
do not think their being made payable to
order, makes them negotiable paper, for
the law does direct that they shail be
drawn payable to order: this is a practice
of the Secretary, adopted. I suppose, for
convenience, but it. has no legal authority
that I am aware of.
It is contended that provided these war
rant wer it regularly issued, that irregu
1 r tv has been caused by the actinn of tin
last. Legislature, in providing for their re
demption by an appropri uion for that
purpose. It is true that the Legislature
could have made provision for their pay
ment as drawn. And this leads me to
consider the appropriation bill of the lat
Legislature, by which it is claimed mohev
is approp lilted to pay these warrants.
Statute of 1870. page 61. Sec'ion 5. pro
vides "For the redemption of warrants
drawn on the Penitential y Fund, not here
tofore provided Sor. fifty-three thousand
dollars; provided. That nothing in this sec
tion shall be so construed as to apply to
the payment of said warrants until after '
the same have been audited hy a Hoard of
Commissioners: provi dedfartkr. That such
Board of Commissioners be appointed.-''
ESS
The same provisos are also in the 7th
section, making appropriations out of the
Incidental Fund, on which sone of the
warrant? in question are drawn. .
In construing this section, I hold that
the secend proviso limits the first; and that
the Legislature intended that the appro
priation should take effect if the Board of
Commissioners should no. be appointed
If they were apppointed. then the Legisla
ture intended thai no warrant referred to
in the section should be paid until audited
and approved by such Board.
The petitioner claims; that no such Board
was or could be legally created. First,
becase these warrants had been drawn for
claims, legally audited by the Secretary
of State, and t hat hia findings were judicial
and conclusive determinations of the va
lidity of the claims for which ihe warrants
Vere drawn, ami were in Ihe nature of
judgments against the State, and could not
ue impaired into by such a tribunal as this
ooard.
I think that h id these warrants been
regular, and drawn by the Secretary when
ecting within his authority, the Legisla
ture haa the rignt to inquire itiiu uieir
iii'egrity and exercise their judgement as
to their" payment. But. even conceding
that his decision is final in a case properly
before him. the view 1 have already ex
pressed of the want of power of the Sec
retary to draw these warrants, when there
were no provision made by law for their
payment, disposes of this question in this
Case.
II the warrants were not authorized
they vvetH void ; and then if the Legisla
ture saw tit to examine and pay such of
them as were lotind to be just, they were
not precluded from inquiring into their
bona jidt-i.
Secondly, it is claimed that these Commissioners-
were officers created by the
last Legi.iatuae. and therefore that mem
bers of the lf i islaiure wen; not eligible.
I will now examine tits question. The
proceeding by wuich this Commission was
created is as follows : Semite Joint Reso
lution No. 27. "Ivesol veil. 'J hat a commit
tee, composed of two persons, one to be
chosen iroin each Huu.se. be constituted a
commission, who shall meet at the State
Capital as soon aa convenient, alter Use
adjournment of the Legislature, and prior
to the second Monday ia November. Said
commission shall have power to appoint a
competent clerk, to i.-sue subpu'uus. ad
minister oaths, compel the attendance of
witnesses, and to send for persons and pa
pers. They shall keep a con ect record of
the testimony taken before them, and re
port the same properly attested to the
next session of the Legislative Assembly.
Said commissioners shail also have power
to select, an additional commissioner, who
shall be governed by the same rules and
receive the same compensation as the other
commissioiuTs. It shall bti the duty of
said commission, after its organization to
proceed at once to investigate the ollicial
conduct of Ihe State officers lor the last
lour years, in the following order : First.
Surperiutendent of the Penitentiary ; sec
ond. Treasurer ; third. Secretary ol State ;
fourth, (Jovernor. and liith. Commissioner
of School Lands. To examine the books
ot each department, compare all entries
with the vouchers on tiie; to examine all
original bills by items, comparing them
with the vouchers, ami attest ihe same to
the Suite Treaurer, if correct, and the
Treasurer is required to pay the warrants
so certiiied upon presentation, provided
that, all warrants issued to the sher.ii--, &a ,
dor conveying prisoners and lunatics.' A.c,
shall be exempt from the action of the
board.' "
The resolution then provides for the
duration of the session of the board, and
lor their pay. which is to be five dollars
per day for each Commissioner and their
clerk, ami the Sec.eiury o: State is direct
ed to draw his warrant for said silaries
oil the certificate ot the Commissioners,
who are authorized (o audit their own ac
counts for time and expenses.
The question presented is. are they offi
cers within the meaning of Sec. l-u. of art.
Sr. of the State Const iiuiion. w hich pro
vides, "No Senator or Representative
ill.
ourm
the lerm
tor
elig
iiCtl
wtijeh tie in 1 ;
b'e to arty of
is vested in tin
have been elected, b-.'
lice, the election to wi
Legislative Assembly, nor :
pointed, lo any civil ollice of
hall be
pro iit w
a
i-
.hill li in. 1.....M (TP 1I...I .,!
tle enio.u-
ments of which shall have been increased
during such term.''' All persons are offi
cers who exercise any power derived from
the Govei ument, and those are public ( di
cers who. iu the exercisv of their official
f nncttot
peiiorm unties wti
,c'i
h n.
concern
ll
pu!
c. In the case of th;
1
vs
Cohen. 8 Col. !'. the Court
otticeis ate public or private ;
case it elepend on the duty In
say. -That
and in each
has to per-
form' l;i this case the respondent
was
was
Ci
rk to the Secretary of ."slate, and
powncu oy. ami neiu ins omc
d 111 ing
Ihe pleasure of thai officer. The Court
further say. "The term olJicer. in its com
mon accept a! ion, is sufficiently compre
hensive to include all persons in any pub
lic station or employment conferred bv
ihe (Jovernment ; ihe respondent was ap
pointed by the Government ; the duties
which he is to perform are public, and he
is '.; be paid out of the public treasury ;
he is. therefore, clearly a public officer.''
The same rule is laid down in ''d Bouvier's
dictionary, page 250 and -i'.Kl ; also in
Jacobs" law dictiorary. vol. 1. page i'...
the author says. "Oifice is that funetPm
by virtue whereof a man hath some em
ployment iu the affairs of another, as of
the King or another person. Officers are
classed by Bluckstorie among iucorporai
hereditaments ; and an nfh'-e i defined to
be a right to exercise a public or private
employment, and to take the fees and
emoluments, thereunto be'onging. whether
public, us those of Magistrates, or private,
as those of bailills. receivers, or the like."
2d Black. Com. Llll. "(Jilicers are dis
tinguished i .to civil and military, accord
ing lo the value of their trusts."" Carth.
hi "tWicers are public or private, and
it is said that eiery man is a public "oflicer
who hath any duty concern lug the puonc
and he is not the less a public oflicer
where his authority is confined to narrow
limits ; because it is the duty of his ofiice,
and the nature of that duly "which makes
him a public officer, and not the extent of
Ins authority.' Carth. 47!). These au
thorities clearly define who are public
otiieers. and I think these Commissioners
come within that definition, for they have
important duties to perform which apper
tain to the pubiic. directly affecting the
disbursement of the public moneys." And
iu exercising the duties impused on them
relative to these warrants ; they exercise
powers that are in their nature judicial,
for their determination of Ihe matters ol
a 1 nvance or rejection of the claims for
which the warrants were drawn is a final
judgement so far as any provision now
exists for their redemption ; and those
who hold them must abide by their deci
sion, for if" their judgment be against the
warrants then there is no appropriation
.to pay them, and the holders are without
legal remedy. It, is true they may resort
to the Legislature for relief, but such re
sort implies the absence of every legal
remedy.
I will now consider the question as" to'
w-heiher these Commissioners were officers
created by the last Legislature, of which
they were members.
The Joint Resolu'ioo provides that a
Committee, composed of two persons, one
from each Houso.be constituted a Com
mission. This is simply raising a joint
committee of two. whose duty it is mtde
to proceed with this business, and it
mikes no difference whetb
they
are
called a Committee or a Commission
their origin and authority indicate their
character They were already ofheers of
Hie Stae, being members of Ihe Legisla
ting on which body devolved their duty
of inquiry into tiie matters confided spec
ially to these Commissioners. If this
- Joint Committee had been appointed to
act during the session of the Legislature
there cau be no question but what they
might have exercised all the functions
which the resolution confers on them.
But it U claimed that the Legislature can
not, under our Constitution, constitute a
committee from their own members to
act after the close of their regular session.
1 think this position is not tenable. S..p
poso that the present Legislature had
been convened in extra session on the 1st
of July last to provide for the financial
embarrassment of the State, and finding
that they could not arrive at a satisfac
tory settlement of the matte's named in
this resolution, had appointed a committee
to examine into these matters, and do the
very things w hich they are directed to do
in tons resolution, and to report to the
regular session. 1 think such a committee
woiiid h ive been a legal body for that
purpose. ; they would have been as legal
a coiinniuee as any special committee ap
pointed and acting during the session.
If they could have done ihis at a special
session they CJtil.l uo it as well a
regular session, for m contemplat:
law the Legislature is always in exi-
at a
oti of
fence.
and either in se.-s.-ion or ready
extra session, w hen needed lor
to meet in
the public
service, there is no interregnum, and in
theory can be none in this branch of the
Government which represents the sover
eign power.
Such Committees are constantly ap
pointed by Congress, ami their expenses
provided for. I think, therefore, thut this
Committee in question, appointed by the
Legislature, was legally Constituted, and
that they were still members of the Leg
islature, having imposed on them duties
which weie not imposed on their iellow
members, and thougn they are public
officers in the exercise of these duties ;
they do not hold an office created by the
Legislative Assembly dis'inct from their
ofiice as members ot that body, but that,
as members, they were authorized to per
form certain legitimate duties, which it
was not convenient for the Legislature to
perform in session
This kind of legislation is not new. It
is the constant practice of Congress to ap
point committees of their own members
to investigate mailers which it is incon
venient to ex. '.mine in session. Such com
mittees are sent to district portions of the
States, with authority similar to the low
ers con'erred on this Commission. Nor
is it. uncommon to impose on oilier officers
new duties. The Governor of th's State
has been made Commissioner to select
school and other Suite lands; and the
Hoard of Commissioners for the sale of
school funis, h is been appointed to exe
cute the recent act relative to the selection
and sale i f swamp lands. Ami I cannot
see that the official character of this Com
mission is changed by the fact that they
wen" empowered to select another person
to assist them in their duties, who would
haio the same authority with them -el ves.
I think there is no ques.ion but what the
Legislative Assembly could have directly
provided for .and elected this commission
and conferred these powers on him and
provided for his compensation, and di
rected lhat fie act iti conjunct ion with a
joint committee of the Legislature
business. And if they coulu thus
him. J can see no lack of power
m this
ippoinl
in the
Legislative
Assembly to confer on their
c
mmiitee the power to select him. and
direct that when selected In' shall possess
the s-iuie power as themselves. The con
ieriing tins power of a
committee is the sain
power conferred on tin:
ning tins power of app
potntmeni on i;
i !
m 1 itid as tne
court to appoint
a cleric, or on tne uepariuienis e. seiee.
a .
IV.
persons to assist I hem.
retarv to the Governor
is the Private se
and tin
.ssistant
Secretary of State.
It is claimed that the Leglsla
not increase the pay ot its me
ure
could
IS. to
five dollars per dav,
and that
if
sctiug as
a legislative commit lee. they
but three dollars per dav.
could r.'cei v e
he Constitu
tion pi-ovules for the pay 01 members of
the Legislature while in session, but is
silent, on the siibfject of their pay for any
extra s -r ice imposed on any of lie mem
I'o.s, while not in session, and I think
there can tie no doubt, but if the f.ei-l.i-lure
hid th power to impos-. this duty on
them, it had a!-o the power to provide lor
their pay. nti ler ih:' ruie that no .person's
services shall be taken without due com
pensation. Tne Legislature represents sr.vere'gti
power of the State, ami lias, inherent iti
itself, the right to exercise any power
iimited by the Constitution. And in con
struing their acts it is a rule that Courts
will not declare an act old unless it
clearly inliinges some provision of the
C
institution. Considerable 11 is been said
iti tin
d utie
argument about the powers and
of Ihe Secretary of Si ate. as r 11-
oitor of accou its against me cauie, ami it
is churned that, he is the only officer, who
can pa.-s on claims against the Stale, while
I conclude lhat iti a ease within his juris
diction where he is directed by law to
a gainst the
audit
sis account and draw his
Treasurer therefor, his
war ran Is
on th;
cannot
procee
judgme
be imjuired into in a enl!a!eral
ling, still 1 hold that the Legisla
ture would have power io Mi.-peuu 11, e
payment of any warrant and mike iti
iiuirv into the integrity and honesty of
the claim on which it was founded, and
that they can
do this by appointing a
Committee or Commission for mat purpose,
composed either of their own members or
of others. The Constitution hits not lim
iied Urn Legislature in this respect, and
where not limited they are sovereign;
and it is their special prerogative, to
guard the public treasury and property,
and to see that, the laws are faithfully ad
ministered in all the departments of the
government, and their power to elicit in
formation and m ike inquiries into these
important subjects, is unlimited.
The Legislature would not have a
right to appoint an o'.a-ter with ai:
to control and supervise the action
thoritv
of the
Secretary, in ihe exercia of his Constitu
tion il functions, but that dees not pre
clude them from inquiring into the integ-
rity of his action, when
lt lias been had.
fraud or mistake
aside his action
If he has been guilty of
it is their province to set
and look into 'he origin;
A transaction.
It was insisted by one of the counsel
for the respondent that il is the province
of this Court to look into and correct the
errors of the Secretary of State, iu pass
ing 01: these accounts, and that in this
case in reply to an alternative writ ot
mandamus, the defendant could show
that the claims for which the warrants
were drawn were fraudulent. I have al
ready stated my views on this subject that
in a case where a warrant was drawn
by the Secretary acting within his juris
diction that the merits of his decision
could not be inquired into in this kitid of
a proceeding, the only question in such a
case would be whether there were funds
in the hands of the Treasurer lo pay the
warrant.
It is also claimed in this case that :i
mandamus will not lie as the Plaintiff
has a rem dy by action against the Treas
urer, and his sureties. I his question was
discussed ami settled in the case of How
ard and wife vs. San ford, at the last term
of the Supreme Court, in a case of a per
son wl o held an order front the Directors
of a School District on the Cieik (who is
officer Newman) of the District.
It was held in that case (hat an action
would not lie but that a mandamus was
Ihe proper remedy. (Case not jet pub
lished.) Rut conceding that this one is not
parallel with that, and tfiut an action
would lie. stili I think if would not be a
speedy and adequate remedy. In case of
an action the party holding the warrant
would be subject to ali the delays inci
dent to an action, and the risks of ins0l
vencv. while iu lieu of a mandamus where
there is a fund in the hands of the Treas
urer to pay the warrant, and the holder is
entitled to have thwt money without delay
and where there is no dispute about the
right, a mandamus a much more speed v
and adequate remedy, than an action, and
can be enforced in a more summary man
ner and better tecure the rights of the
plaintiff.
Several other questions were discussed
in the argument, but it seems to mo that it
is. not necessary to discuss them here, in
view of the fact that the points decided
iti this opinion lead to the conclusion that
the petition must be dismissed.
Telegraphic Clippings,
"WasIiinJoJi News
Wa:;iinoto.v. March 3. In the House.
The President, with his Private Secretary
and Cabinet came to the Capital to sign
bills, and was snugly eared for in the
President's room, where he had spread a
fine collation. In his ofiice on the House
side, a well-known frequenter of the cor
ridors has preempted a military com
mander's room, and spread canvass-back
ducks and cigars. The House is impa
tient at the delay of the Senate, and mani
f. s's its feelings in elisonfer and tumult.
'i he night session of the House continued
until o;:i'J a. m. A regular storm was
raised by a proposition by iiunieia to
atlopt an amendment to the rules, which
amendment w.is interrupted by . Demo
crats. It aims at giving the Republicans
a majority in the next Congress, the same
pewer that it exercised during thy pre-s-ent
Congress, through its majority cf over
two-thirds. They propose to amend the
42d rule tso as to provide that alter the
previous question is moved, no motion
shall be entertained except to adjourn
and to lay on the table. Such motions
not be repented, and that after the pre
vious question is settled, no original
motion whatever shall be entertained, ex
cept the single motion to adjourn.
Lldridge. ifrooks of New York. Randall,
and other Democrats, denounced the
proposition in immeasurable terms,
amidst gieat excitement ; Brooks vowing
that Democrats would resist, oven at the
hazard of revolution.
VanWyck declared that the forty second
Congress" could adopt its own rules, and
the pres-nt Congress had found existing
rules necessary to secure honest legisla
tion. Eidridge thanked Cod that there were
some honest men on the Republican side
of the House.
Garfield said that it was the purpose of
the proposed rule to place a minority iti
the lower of the majority. Finally amid
much uproar, the question was taken on
suspending the rules and adopting the
amendment, and was negatived by a vote
of til lo G2 not two-thirds in the aflirma
live. Another scene occurred, when Mr.
Clark of Kansas, made an attempt to get
up a land grab bill, which was denounced
by Randall and others, as State stealing.
'1 he charge being resented by Chirk, who
pronounced it lal-e. went ?o far that
active movers in the affair shook fis'.s at
each other, but didn't come t bl ws.
The proposition to suspend the rules
and puss the bi:l got twenty-two affirma
tive votes.
Members generally wore an expression
of weariness, consequent on along night's
session and want oi' rest. After about
live minutes spent it! presentation of Ex
ecutive messages, the House took a
further recess til 11 o'clock; meanwhile
members gathered in groups, holding
noisy conversations over the scenes of the
night's session, and preperations for the
opening of the fd Congress
i lie guliert
irr,i,l;. jllv fittest nn 7vitli
spectators. The
House resumed its ses
sion at 1 1 a. in.
W, re
lation ! ween
i 1 1 N
to
the
i TON
s.T.
.iarca o. l no act in re-
telegra pi.ic
United Stat
cemmunicuiiou be
es aii. I foieig.u coun-
t l ies, ali noug.i p
, 1
.ted to the President
iti time, fail
leu 10 receiv e u:s
approval tor
reciprocity
of laving oaf
hs in foreign
nad tne toil, out
withheld his signature.
It is not certain
that tne s-ena!e wnJ cone:
tir in tne 1 louse
lies olu ion to ad'pui n siw die on Wednes
day. Some Sftrinus a re disposed to re
m i n in session until the San Domingo
Com mission ers report
Was:i'.(;ton. March 0. The Treasury
Department has been advised that $ 1.151.
7)0 ) h tve beeri subscribed to the new loan.
W.sHtNrro. Marcii 4. The miscellane
ous appropriation bill as finally passed,
contains the following Perns inserted bv
Ihe Senate last night: Rebuilding light
house at Cleveland. Ohio, fifty thousand
dollar.; aw;
Interior Jo
Census Mar
cretioii tin
tioriz
nere;
.tig the
.-e the
secret
comp
iry of the
uisation of
in his dis
ion not to
lins tiitv ie-r cent.
entire eomnensat
exceed e'ght dollars per day f r tin
time emp'.med. also a sectioi authorizing
tiie President of the United Slates to pre
scribe such rules ami regulations for ad
mitting persons iuiq tiie. civil service of
the United States as will be best to pro
mote the efficiency thereof"..
The Republican Senators hold a caucus
on Monday to agree on standing commit
tees of t heir body.
The Ifigh Commission, all ihe members
present, held their second meeting at the
Dep
Am
:rt men; 0!
ricuu itiPi
;a;e
:i bers
ih.s afternoon. The
this evening enter-
tattled tne Liiti-h members at dinner.
In the House, after the announcement.
that Elaine was dulv re-electec
tlie l''d Congress, the Speaker
r
of
was
con
ducted to tiie chair and addressed the
House.
Mayn ud objected swearing Waddell, of
Xorih Carolina, as being disqualified from
boi ling ofiice.
Kerr objected to swearing the Tennessee
delegation on the ground that the election
law ol that State had been repealed and
they were elected without the sanction of
law.
Eingham moved that the Tennessee
members be sworn and the credentials re
ferred to the Committee on Elections,
which motion was agreed to and they were
sworn, three taking the test oath of" 1 8 1 2 .
arid five the modified outh of 18'"J1.
Kerr objecte 1 lo swearing .Mississippi
members, as their credentials presented
no prhitu facie evidence ot rights to seats
Ringham moved that the Mississippi
delegation be sworn and their credentials
referred lo the Committee on Elections.
Agreed to.
Hooper. Xibluck and Schofield. were ap
pointed a committee ot the House to join
:i like committee of th Senate to wait op
en the I're-i.'ent and inform him that Con
gress was ready to proceed to business;.
Dawes offered a concurrent resolution
to adjourn sine die Wednesday, March 8.
at 12 noon. The resolution was agreed to
on divi.-ion, 1 17 to 17.
Keliy called up the case of Waddell. of
...... 11 , ...V, .... .. .1 ... - 1 ! U j , ,! ;l y.
mud objected, and moved ho bo sworn.
The motion was agreed lo and the oath
administerred.
Emigrants kou Oiti:; n. The San
Francisco dispatches of the S:h say that
Mr. Holladay has perfected arningemenls
for forwarding fitly thousand (h-rm.in
emigrants to Oregon to settle on the lands
of Ihe Oregon and California Hail road
Company. A line of steamers will be put
on b) run direct Jrom Kremen to Aspin
wa'.l. connecting With a new and inde
I e iilent line to be established between
Panama and San" Francisch ami Purl land,
the organisation of which is about com-
po.eu. 1 assengers will - be landed
Oregon from Lremen at a cost not
ceedmg S7t).
in
ex-
Senator Corbett introduced a resolution
on the ILh ult. to release W. L. Adams,
who was collector of the port of V-oria,
and claimed to have been robbed of some
ox i.ooa Government
money, while on his
. in Isi.'Ut TniKi .i,,.-
way 1 1 San Francisco,
liability. Mr. Adams m'fht .,u wi , ,;,
as
neen robbed of a larger sua
leased just a3 eas.
and
got re-
To Newspaper Publishers of Oregorf.
You are respectfully requested to meet i'fi
t he city of Salem on Friday June 23, 1S7L,
at 1 o'clock r. m., fur the perr'pose of tckinr
into consideration such mat! ers as may be
deemed be.-t fur the protection of the inter
ests of publishers in this State; of establish
ing rates of advertising, newspaper subscript
ti m, and commission to be allowed adver1
tising agents. Nfcwspaier publishers of
Washington Territory are respectfully in
vited to pwrticapite. Newspapers favoriud
this movement, will please publish this cajl,
adding the name of the Publisher ta th
list ot signatures.
Respectfully, A. L. STINSON, .
Pub. Willamette Farmer.
S. A. CLARKE,
Oregon Statesman.
T. PATTERSON & CO..;
. Herald.
UPTON & HOWELL,, q
Pubs, and Pros. Mercury.
MART. V. BKOWNr .
Pub. State Rights Democrat.
A. NOLTN EK, .
Weekly Enterprise.
Dkmockatic Eua. Arrangements have
been completed for the publication of a
weekly Democratic paper iu ,Ea-t Port
land, to commence in about four weeks.
The proprietors are , Messrs. Urban E.
Hicks and a Mr. Ravely. late of Califor
nia. The name which the new jonrnal isj
to bear is Tke Democratic Era. Bulletin
Should be a
COXTRAIU.ND
Tkade. Selling one's friends
Oregon City Prices Current.
The following are the prices paid for
produce, and the ju ices at which other ar
icles are selling, in this market :
WHEAT White.c bushel, $1 101 20
OATS- f"; bushel. 40 cts.
POTATOES c bushel. 50075 eta.
ONIONS bushel. $1 (Jl)(l 50.
FLOPR-I? bbl. S5 5u(p t 00.
DEANS While. lb.. cts.
DRIED FRUIT Apples. fo.,
Peaches. lb., ln'ire: Plums. lb.,
1G cts.; Currants. l lb.. 1(20 cts.
PUTTER -- lb.. 37cts.
ECGS 5- dozen. 20 cts.
15
CI 1 ICR ENS doen, S
SUGAR Crushed. V lb.
L o
'10 cts.; Island
"t r lb12i cts.; N. (.. "f" lb.. 15 cts.;
San Francisco radioed, 'fi If j . l(jj cts,
TEA Young Hvson. . lb., $1 50; Ja
pan. lb., y0et$l 25 ; Ulack. ib., 75e.
(.31 00.
COFFEE "(9 fb.. 22o?v:5 cts.
SALT 11.. l(tyih cts. - ,.
SYRUP Heavy Golden, ''gaH.,$l 00 ';
Ex. Heavy Golden. 0. gall., si 25
BACON Hams. lb.. 10 cts; Sides,
15 cts. ff).: Shoulders, 10 cts.
LARD r Ih.. 120124 cts.
OIL Devoe's Kerosene, If? gall., 75,
Linseed oil. raw. r. frail.. -.Sl .Mi
Linseed oil. boiled. 7? galL, $1 50.
WOOL j! lb., 20py22 cts.
P.EF.F Oti foot, 7 (d)H cts. f, lb.
POUR On foot. C(a Tcts A lb.
SHEEP Per head .2 00V.$2.50'.-
HIDES Green, lb.. 5c. ; Dry. lb.;
12 h cu ; Salted, 8c
O
WILX-IAM DAVIDSON,
REAL ESTATE DEALER
tidiif,
Front Strtrt,.,.
ft REG ON.
PORTLAND;
R1IAL ESTATE in this CITY and
EAS" FoltTLAND, in the most desirable
localities!. consisting of LOTS, IIALIf
R LOCKS and RLOCKS, HOUSES and
STOKLS; also
IMPROVED FARMS, and valuable
vtneultivT.-ed LANDS, located in ALL parts
of the STATE lor SALE.
PEAL ESTATE and other Fropertr
purchased for t'oi i etondents, in this CITY
and throughout the STATES and TERR I;
TOflff S. wir'i great care and nil the most
A D V A S T A 1 J EO L" S TERMS.
TIOCSE- nnd STORES LEASED;
LOAXS NEGOTIATED, and CLAIMS .OF
ALL DESCRIPTION'S PROMPTLY COU
LECTEl . And a General FINANCIAL and
AGENCY BUINESf transacted.
AGENTS of this OFFICE in all the
CITIES ami TOWNS in the SI A I E. will re
ceive des li .tior.s of FARM PROPERTY
an Jfferwurd the same to the above addreasi
Feb. ?,. 1871.
. G
ItU leccj lir-grt e I.ortge .o. 3, . O. O. V
OJi Meet on the Second and Fourth
TUESDAY EVEXLXGS,
ot each month, at 7 o'clock, in Odd Fellowf)
Hall.
Members of the Degree are inTited lb
attend. By order of
N". G
Cn vrmtri II ,xns and Face, sore lips, dry.
t e-s ol the skin, Arc, ic, cured at once by
liegeman's Cam phi r Ice with Glycerine.
I- keeps the hand's soft in ail weather. Sea
that you get liegeman's. Sold by all drug
gists, oiily ; cent-. Mai'nufactared only bT
liegeman & Co., Cliem sts od Druggists?
No York. dec'i()-ly
SyiAftRfAQE GUIDE:
EYERY 'tNE HIS OWN DOc.ToR. , .
A private instructor for married persons
cr;.thosi iib'iut to be married, bnth male and
fern de, in. everything concerning the phys
iology and relations of our sexual systen
and the product ion and prevention of offi
sjiting, inchi ing all tlie new discoveris
never bef ie irh'er iu the English laNgyagt
by WM. YOUNG, M. I). This is really a vaR
liable and interesting work. It is written
in plain language for t lie general reader, and
is illustrated with numerous .engra vingsi
All young married people, or those contem
plat iug marriage, and having the least im-pedim'-nt
to married life,- should rend this
book. It discloses secrets that every one
should be acquainted with ; still it is a book
that must be locki d up and not lie about
the house. It wdl be sent .to anv address
on receipt of tifi.v cents. Address Dit. WM.
iML . G, No. 4S(j Spruce street above Fourth.
Philadelphia. " vnvim
M:ituomnli Uilc So. 1, A. F. and
A A. 31. Holds its regular enmmnnics-
t,OI1S 011 t!, rit'U a"d Wird Satur
'rX'!"'J m each month, at 7 o'clock from!
the yotf, (Jf September to the 20th of O
March, and 71 o'clock from the 2oth pf
-March to the 2oth of September. Breth
ren iu good standing are invited to attend.
! " '-3.1 k7o, by order of W. M..f.
Oregon Lodge No. 3, I. O. or O. P."
os-i Mee's every Thursday even
irei'-'J ' at 7 o'clock, in Odd Fellow's"
Hall, Main s eet.
.Members of the Order are invited to attend1
I5y order. jqt
ESTATE EXCHANGE
P0STLAND, - - OREGON.
IL. CURRY,'
DEALER IN HEAL ESTATE AND OTHER
INVESTMENTS.,
Commissioner Selecting Swamp and Over
flowed Lands.
F.inn L oids sold and purchasers obtained?
for all kinds of hoi. led property.
Vabmb e securities transferred in exchange
for real estate.
Loans negotiated on property, and titles
examined and determined.
Commissions solicited and executed with'
nd-litv and promptness.
OFFICE-Xo. i t Carter's Building, corner"
of Alder and Front streets.
Ft b. :J, s7o;tf
51 OTIC 13 TO LITIOAXTS.
The Exteupktse having been desirnati
by Governor Grover as the officia,l orgatf
for Clackamas county under the "Litigant
Act.'-' we give notice that we are prepared
to comply with the firms of said act,
Q
o
O
o
Q
o
o
o
o
G
o
o
O
o
o Q
o
o o
O
0
O
O
1
o
O
o
o
o
e- '
. 1 1