1. For results of a statistical study of sixteen state supreme courts, including Oregon's, over an entire century, see Kagan, et al. , The Business of State Supreme Courts, 1870–1970, 30 Stan. L. Rev. 121 (1977)CrossRefGoogle Scholar.

2. The years of our study, more precisely, are those included within the first ten volumes of Oregon Reports, beginning with December 1853 decisions by the territorial supreme court and ending in March 1883.

3. Recent scholarship has begun to deconstruct the traditional distinction between public and private law. The extensive private interests influencing and affected by “public law” decisions, the important public-policy choices underlying many “private law” decisions, and the ideological significance particularly during the late nineteenth century of conceptualizing a dispute within one category or the other all suggest the need to rethink or even abandon that distinction. See, e.g., Hartog, H., Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870 (1983)Google Scholar; Dalton, , An Essay in the Deconstruction of Contract Doctrine, 94 Yale L.J. 997 (1985)CrossRefGoogle Scholar; Symposium on the Public/Private Distinction, 130 U. Pa. L. Rev. 1290 (1982)Google Scholar; McCurdy, , Justice Field and the Jurisprudence of Government-Business Relations: Some Parameters of Laissez-Faire Constitutionalism, 1863–1897, 61 J. Am. Hist. 970 (1975CrossRefGoogle Scholar). Nonetheless, we have retained the term public law here because we think, for some, it will help describe our subject.

4. U.S. Bureau of the Census, Historical Statistics of the United States 12 (1960)Google Scholar. The corresponding official figures for Oregon blacks were 128 in 1860, 346 in 1870, and 487 in 1880; for Chinese, 425 in 1860, 3,326 in 1870, and 9,472 in 1880. Merriam, P., Portland, Oregon, 1840–1890: A Social and Economic History (1971) (Ph.D. diss., University of Oregon)Google Scholar. A more careful analysis of the early Oregon black population appears in Richard, , Unwelcome Settlers: Black and Mulatto Oregon Pioneers, 84 Or. Hist. Q. 29, 173 (1983)Google Scholar. Federal census figures before 1890 excluded Indians living in Indian territory or on reservations, U.S. Bureau of the Census, supra at 4 and no reliable estimates from other sources seem to exist. See generally Berreman, , Tribal Distribution in Oregon (1937)Google Scholar; Mooney, J., The Aboriginal Population of America North of Mexico (1928).Google Scholar

Oregon's population at statehood was well below the 93,000 then apportioned to each congressional seat. Several members of Congress tried to impose that level as a condition of admission, as in the case of post-Lecompton Kansas, but territorial delegate Joseph Lane successfully countered with repeated estimates as high as 80,000. The real issues in the Oregon statehood debate, of course, related to sectional and Congressional balances of power. See generally Johannsen, R., Frontier Politics on the Eve of the Civil War 47–48 (1955Google Scholar); Carey, C., The Oregon Constitution 20, 45 (1926)Google Scholar; Woodward, W., The Rise and Early History of Political Parties in Oregon 1843–1868, at 147–49 (1913)Google Scholar; Simms, , The Controversy Over the Admission of the State of Oregon, 32 Miss. V. Hist. Rev. 355 (1945)Google Scholar.

5. U.S. Bureau of the Census, supra note 4. By 1880, mining and ranching had attracted nearly a quarter of the state's population east of the Cascades. Sixty percent, however, continued to live in eight Willamette Valley counties—Benton, Clackamas, Lane, Linn, Marion, Multnomah, Polk, Washington, and Yamhill. Spenker, E., Eighty Years of Population Changes in Oregon: A Descriptive Analysis app. B (1933) (M.A. thesis, University of Oregon)Google Scholar.

6. Johansen, D. & Gates, C., Empire of the Columbia 278 (2d ed. 1967)Google Scholar. See generally Snyder, E., Early Portland: Stump-Town Triumphant (1970)Google Scholar; Maddux, P., City on the Willamette (1952)Google Scholar; Scott, H., History of Portland Oregon 139–176 (1890)Google Scholar; P. Merriam, supra note 4.

7. D. Johansen & C. Gates, supra note 6, at 278–84; Pomeroy, E., The Pacific Slope: A History of California, Oregon, Washington, Idaho, Utah, and Nevada 135–39 (1965)Google Scholar; Quiett, G., They Built the West: An Epic of Rails and Cities 370–71 (1934).Google Scholar Other 1880 city and town populations included Astoria 2,800, Eugene 1,100, Oregon City 3,100, and Salem 2,500. E. Spenker, supra note 5 at app. D.

8. The outstanding work on early Oregon politics is W. Woodward, supra note 4; the quoted phrase appears at 183. See also 1 Clark, R., History of the Willamette Valley 680–725 (1927)Google Scholar; George, , Political History of Oregon from 1872–1898 Inclusive, 3 Or. Hist. Q. 107 (1902)Google Scholar; Fenton, , Political History of Oregon from 1865 to 1876, 2 Or. Hist. Q. 321 (1901)Google Scholar; 3 Or. Hist. Q. 38 (1902); Williams, , Political History of Oregon from 1853 to 1865, 2 Or. Hist. Q. 1 (1901)Google Scholar.

9. Despite the presence of favorite-son Joe Lane on the prosouthern Breckinridge ticket, the 1860 Oregon presidential vote was Lincoln 5,344, Breckinridge 5,074, and Douglas 4,131. That campaign marked the end of Lane's meteoric political career. He returned to Oregon in March 1861 on the same boat as news of the firing on Fort Sumter, amid rumors of his complicity in secessionist efforts to establish a Pacific Coast Republic. Nearly all his former political associates shunned him, and at least one crowd hung him in effigy. W. Woodward, supra note 4 at 192–93; Carey, C., General History of Oregon 777 (1935)Google Scholar; Ellison, , Designs for a Pacific Republic, 1843–62, 31 Or. Hist. Q. 319 (1930)Google Scholar. Federal judge Matthew Deady was among the few who continued to pay occasional respects. 2 Pharisee Among Philistines [Deady Diary 1871–1892] 336–37 (M. Clark, Jr., ed. 1975); letter from Deady to James Nesmith, May 16, 1861, Deady Papers, Oregon Historical Society. See generally Hendrickson, J., Joe Lane of Oregon: Machine Politics and the Sectional Crisis, 1849–1861 (1967).Google Scholar

10. In July 1858, anticipating statehood, the territorial legislature elected Joseph Lane and Delazon Smith as Oregon's first U.S. Senators. By lot, Smith's term was to expire in March 1859, and Lane's the following year. The special May 1859 state legislature failed to elect a successor to Smith, so the September 1860 legislature filled both vacancies, with Baker and Nesmith. See, e.g., W. Woodward, supra note 4 at 135–38, 161–62, 169–83.

The dashing Colonel Edward Dickinson Baker was a friend of Lincoln recently arrived from Illinois via California, whose oratory “swept Oregon into the Republican columns and himself into the Senate.” E. Pomeroy, supra note 7 at 76. He was killed in October 1861 at Ball's Bluff, the same day his young lieutenant Oliver Wendell Holmes, Jr. was badly wounded. See generally Blair, H. & Tarskis, R., Lincoln's Constant Ally: The Life of Colonel Edward D. Baker (1960)Google Scholar; Shuter, , Colonel E.D. Baker, 17 Calif. Hist. SOC. Q. 316 (1938)Google Scholar; Fenton, , Edward Dickinson Baker, 9 Or. Hist. Q. 1 (1908)Google Scholar.

Democrat James W. Nesmith arrived in Oregon with the “great migration” of 1843 and quickly became a popular political leader. Colorful storyteller and owner of a flour mill near Dallas, he served variously as provisional-government judge and legislator, federal marshal, officer in three Indian wars, and U.S. Senator and Representative. He achieved a measure of notoriety in 1865 as the only Democratic senator to vote for the Thirteenth Amendment. Fenton, supra note 8 at 325–26; 2 Hawthorne, J., The Story of Oregon: A History with Portraits and Biographies 200–04 (1892)Google Scholar. See generally Williams, L., James W. Nesmith and the Oregon Frontier Community 1845–1860 (1963) (M.A. thesis, University of Oregon)Google Scholar.

11. W. Woodward, supra note 4 at 202–265; Williams, supra note 8 at 34; Fenton, supra note 8 at 324–31.

12. Postwar Democratic vote totals in the state included sizable numbers cast by former Confederate soldiers and sympathizers arriving particularly in eastern and southern counties. Union and later Republican party faithful referred derisively to such voters as “Price's Army,” after the guerilla force Missouri governor Sterling Price had led into the Confederate ranks in 1861. W. Woodward, supra note 4 at 236, 250, 264; E. Pomeroy, supra note 7 at 78.

13. W. Woodward, supra note 4 at 255–57.

14. The first quotation is from Clark, , The Bigot Disclosed: 90 Years of Nativism, 75 Or. Hist. Q. 109, 122 (1974Google Scholar); the second from W. Woodward, supra note 4 at 263. Democratic presidential candidate Horatio Seymour of New York also carried the state over Ulysses Grant by 200 votes. Fenton, supra note 8 at 67.

15. 1868 Or. Laws 111–15.

16. 1870 Or. Laws 190–91. New Democratic Governor Lafayette Grover had expressed in his 1870 inaugural address his “settled conviction” that the Fourteenth and Fifteenth Amendments violated “the inherent and reserved rights of the several States” and never had been “legally sanctioned.” The Fifteenth in particular deprived Oregon of the “first element of its Constitution, guaranteed by her admission to the Union— the right to regulate suffrage.” See Richard, supra note 4 at 53–55; Mclagen, E., A Peculiar Paradise: A History of Blacks in Oregon, 1788–1940, at 71 (1980)Google Scholar. Not until its centennial legislature in 1959 did Oregon finally vote to ratify the Fifteenth Amendment. 1959 Or. Laws 1511.

17. See generally 1 R. Clark, supra note 8 at 686–89; 1 Carey, C., History of Oregon 809–27 (1922)Google Scholar; Fenton, supra note 8 at 52. One federal policy promoting “aggrandisement of the rich” which Democrats especially disliked was payment of bond obligations in specie but pensions in depreciated greenbacks. Id. On postwar currency matters generally, see infra text at notes 138–51.

18. E. Pomeroy, supra note 7 at 78; See also Foner, E., Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (1970).Google Scholar For an account of the postwar evolution from issues of civil war and reconstruction to those of economic expansion and power, see Keller, M., Affairs of State: Public Life in Late Nineteenth Century America 238–87 (1977)CrossRefGoogle Scholar; for a devastating cartoonist's perspective, see Keller, M., The Art and Politics of Thomas Nast (1968)Google Scholar. On the Republican transformation specifically, see Mayer, G., The Republican Party 1854–1964, at 171–220 (1964)Google Scholar; Montgomery, D., Beyond Equality: Labor and the Radical Republicans 1862–1872, at 335–86 (1967)Google Scholar; Stampp, K., The Era of Reconstruction 1865–1877, at 186–215 (1966)Google Scholar; on Oregon parallels, see W. Woodward, supra note 4 at 237–65; George, supra note 8.

19. Fenton, supra note 8 at 51–58; George, supra note 8 at 108–10.

20. Clark, supra note Hat 129. For a summary of Mitchell's personal and professional misdeeds, see Maccoll, E., The Shaping of a City: Business and Politics in Portland, Oregon 1885 to 1915, at 201–04 (1976).Google Scholar

21. George, supra note 8 at 107–109; Fenton, supra note 8 at 39–40; 1 Hines, H., An Illustrated History of the State of Oregon 177–79 (1893).Google Scholar

Oregon played a small but prominent role in the 1876 Hayes-Tilden election dispute. With 185 electoral votes needed to win, Tilden initially had 184, Hayes 165, and 20 were subject to various challenges—eight in Louisiana, seven in South Carolina, four in Florida, and one in Oregon. Article II Section 1 of the federal constitution seemed to disqualify one of Oregon's three Republican electors, J. W. Watts, because as Lafayette postmaster he held a federal position of “trust or profit.” Oregon law provided that if any presidential elector did not or could not serve, those remaining were to choose a replacement. The two unchallenged Republicans obstinately chose Watts to fill his own vacancy.

Democratic Governor Lafayette Grover intervened, however, reasoning that because Watts had never been eligible, he had not been an incumbent and there was no “vacancy.” So Grover directed Secretary of State Stephen Chadwick to certify the candidate with the next highest vote total, Democrat E. A. Cronin. The national electoral commission decided Oregon's dispute just as it did those from elsewhere, by an 8–7 party vote favoring Republican Hayes, whose promise to remove federal troops from the South then apparently helped ensure Democratic acquiescence in Congress. See generally Woodward, C., Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (1951)Google Scholar; Haworth, P., The Hayes-Tilden Disputed Presidential Election of 1876 (1906)Google Scholar; Dippre, , Corruption and the Disputed Election Vote of Oregon in the 1876 Election, 67 Or. Hist. Q. 257 (1966)Google Scholar.

22. George, supra note 8 at 109–10; 5 Scott, H., History of the Oregon Country 44–46 (L. Scott ed. 1924).Google Scholar

23. C. Carey, supra note 17 at 826–29; George, supra note 8 at 110–112.

24. 1 R. Clark, supra note 8 at 460; See generally Winther, O., The Old Oregon Country: A History of Frontier Trade, Transportation, and Travel 173–76, 235–39 (1950).Google Scholar

25. The quotation is from D. Johansen & C. Gates, supra note 6 at 282; See generally authorities cited supra note 7.

26. D. Johansen & C. Gates, supra note 6 at 316–32; 2 Bancroft, H., History of Oregon 744–45, 752–59 (1888)Google Scholar; R. Clark, supra note 8 at 431–525; Hittell, J., Commerce and Industries of the Pacific Coast 280–82, 310–11, 322–23, 438–40, 445–47, 554–58, 579–83 (1882).Google Scholar

27. See D. Johansen & C. Gates, supra note 6 at 279–82; O. Winther, supra note 24 at 231–245; Stewart, , Steamboats on the Columbia: The Pioneer Period, 51 Or. Hist. Q. 20 (1950)Google Scholar; Johansen, , The Oregon Steam Navigation Company: An Example of Capitalism on the Frontier, 10 Pac. Hist. Rev. 179 (1941)CrossRefGoogle Scholar; Poppleton, , Oregon's First Monopoly—The O.S.N.Co., 9 Or. Hist. Q. 274 (1908)Google Scholar; Gillette, , A Brief History of the Oregon Steam Navigation Company, 5 Or. Hist. Q. 120 (1904)Google Scholar.

28. By 1880, OSNC owned 26 vessels, had invested more than $3,000,000 in facilities, and had paid “a conservatively estimated $4,600,000 in dividends.” D. Johansen & C. Gates, supra note 6 at 279. The principal founders of OSNC were its president John Ainsworth (later president of First National Bank), Simeon Reed (early financier whose widow founded Reed College), William S. Ladd (of early commerce and banking fame), and Robert Thompson (just an ordinary early millionaire). The company took ruthless advantage of its monopoly, charging up to ten times as much per ton of freight as any other firm operating on a major American waterway. Poppleton, supra note 27 at 285; See generally G. Quiett, supra note 7 at 339–98.

29. 14 Stat. 239 (1866); See also 15 Stat. 80 (1868); 16 Stat. 47 (1869); Joseph, , The Oregon and California Railroad Land Grants: A History Lesson for the Urban-Renewal Program, 41 Or. L. Rev. 97 (1962)Google Scholar; Ellis, , The Oregon and California Railroad Land Grant, 1866–1945, 39 Pac. N.Q. 253 (1948)Google Scholar; Gaston, , The Genesis of the Oregon Railway System, 7 Or. Hist. Q. 105 (1906)Google Scholar.

30. Gaston told his version of the rivalry in Gaston, supra note 29. On Holladay's early career, see Lucia, E., The Saga of Ben Holladay, Giant of the Old West (1959)Google Scholar; Frederick, J., Ben Holladay the Stagecoach King: A Chapter in the Development of Transcontinental Transportation (1940).Google Scholar

31. See authorities cited supra note 29; Villard, H., The Early History of Transportation in Oregon 1–34 (O. Villard, ed. 1944)Google Scholar; 1 R. Clark, supra note 8 at 503–539; O. Winther, supra note 24 at 293–302; Ganoe, , The History of the Oregon and California Railroad, 25 Or. Hist. Q. 236, 330 (1924)Google Scholar; Clarke, , The Oregon Central Railroad, 7 Or. Hist. Q. 133 (1906)Google Scholar.

32. See 39 Stat. 218 (1916); 35 Stat. 571 (1908); Oregon & California R.R. Co. v. United States, 243 U.S. 549 (1917); same, 238 U.S. 393 (1915); United States v. Oregon & California R.R. Co., 186 F. 861 (C.C.D. Or. 1911). See generally Ellis, supra note 29; Joseph, supra note 29.

33. Bowles, S., Across the Continent: A Summer's Journey to the Rocky Mountains, the Mormons, and the Pacific States, with Speaker Colfax 197 (1865)Google Scholar.

34. Federal judge Matthew Deady described his home city in similar terms for Bret Harte's Overland Monthly: “Do what it will, [Portland] will be comparatively a provincial place … but it will be worth more dollars per head than either London or New York, and its good citizens will sleep sounder and live longer than San Franciscans.” Deady, , Portland-on-Wallamet, 1 Overland Monthly 43 (1868)Google Scholar, quoted in E. Pomeroy, supra note 7 at 136. Supreme Court Justice Stephen Field, whose circuit duties brought him regularly to Portland, agreed as well. Letter from Field to Deady, Oct. 23, 1880, Deady Papers, Oregon Historical Society.

35. E.g., D. Johansen & C. Gates, supra note 6 at 298 (“sobriety, thrift, and the caution of the commercial elements combined with agricultural provincialism and tradition to create a conservative community”); E. Pomeroy, supra note 7 at 135–39 (early Oregonians characterized by “prudence,” “conservatism,” “solid respectability” even “mossbackism”).

36. See supra notes 33, 35. Many Portlanders “kept Sunday with as much strictness as Puritanic New England.” D. Johansen & C. Gates, supra note 6 at 286, paraphrasing S. Bowles, supra note 33 at 183. Even within the elite, however, there developed little tradition of genuine public service or philanthropy:

Oregon's resources for support of education were limited; its school land funds were stolen or mismanaged, and while the public might profess a devotion to learning, taxpayer and private donor were less concerned with cultural development than with economy.

Id. at 292. For an extended treatment of this latter theme, See E. Maccoll, supra note 20.

37. Editor Harvey Scott, for example, observed in 1887 that there were “two distinct classes” of early Oregonians: “The early citizens of Oregon were of two distinct classes— frontiersmen and agriculturists from the Southern and Western states, and tradespeople from New York and the New England states. The former were in reality the pioneers, and the latter were commercial adventurers who followed them.” Oregonian, June 15, 1887, reprinted in 1 H. Scott, supra note 22 at 247; See also Clark, supra note 14 at 109–131; Robertson, , The Social Evolution of Oregon, 3 Or. Hist. Q. 1, 3 (1902Google Scholar); Scott, E., Grange Movement in Oregon (1939) (M.A. thesis, University of OregonGoogle Scholar).

Heightened economic conflict was a nationwide phenomenon at that time. See generally M. Keller, Affairs of State, supra note 18 at 162; Trachtenburg, A., The Incorporation of America (1982)Google Scholar. Henry George provided the classic description and analysis. H. George, Progress and Poverty (1879).

38. On populism in Oregon, See D. Johansen & C. Gates, supra note 6 at 344–68; Dodds, G., Oregon: A Bicentennial History 156–60 (1977)Google Scholar; See generally Hicks, J., The Populist Revolt (1931)Google Scholar; Bicha, K., Western Populism: Studies in an Ambivalent Conservatism (1976)Google Scholar. Governor Pennoyer's legendary disregard for the establishment extended even to occupants of the White House. When President Harrison visited Oregon in 1891 Pennoyer refused to meet him. Two years later when President Cleveland urged western governors to use all lawful means to safeguard their Chinese residents, Pennoyer responded, “I will attend to my business. Let the President attend to his.” Harvey Scott referred to him editorially as “His Eccentricity”; and to Judge Matthew Deady he was “Silpester Annoyer” or, simply, “a Jacobin.” See Clark, supra note 14 at 130; Pharisee Among Philistines, supra note 9 at 551, 558; Pintarick, His Eccentricity, Oregon Magazine 52–56 (Nov. 1982).

39. Or. Const, art. VII, § 2. For a comparison of Article VII with its principal source, the Wisconsin constitution, See C. Carey, supra note 4 at 475.

Many early state constitutions provided for gubernatorial or legislative appointment of judges. Every state admitted after 1846, however, chose to elect all or most judges, as part of the movement toward “broadened suffrage and broader popular control of public office which Jacksonian Democracy built on the foundations laid by Jefferson.” Hurst, J., The Growth of American Law 122, 140 (1950)Google Scholar. Older states participated in that movement as well, with at least seven choosing in 1850 alone to require more popular election of judges. Friedman, L., A History of American Law 371 (2d ed. 1985)Google Scholar; See generally Haynes, E., The Selection and Tenure of Judges 80–135 (1944)Google Scholar; Hall, , Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Judges, 1850–1920, 1984 Am. Bar F. Res. J. 345.Google Scholar

40. Or. Const, art. VII, § 10. The legislature instituted such distinct-class elections in 1878. See infra text accompanying notes 128–37.

41. Proposals for court size ranged from one justice (without circuit duty) to five. C. Carey, supra note 4 at 187–190, 197, 226. Delegates agreed finally on four so that appeals could be heard by three justices without violating article VII, section 6: “every decision shall be made by those Judges only … who did not try the cause … in the Circuit Court.” Court size was not to exceed five until the state's white population reached 100,000, and never to exceed seven. Or. Const, art. VII, § 2. In 1862, the legislature added a fifth justice, for a new judicial district east of the Cascades. 1862 Or. Laws 89. See generally Smith, , An Historical Sketch of Oregon's Supreme Court, 55 Or. L. Rev. 85, 86–91 (1976Google Scholar).

42. Proposals for length of term varied from four years to ten, with debate reflecting the familiar tension between independence and accountability. See C. Carey, supra note 4 at 183–84, 189, 194–95, 347–48.

43. No convention subject received greater delegate attention than state salaries. As Johansen and Gates concluded, “If the convention distinguished itself in any major respect, it was in a penurious thriftiness which burdened a few ill-paid officials with multiple duties.” D. Johansen & C. Gates, supra note 6 at 263. See also Palmer, , The Sources of the Oregon Constitution, 5 Or. L. Rev. 200, 215 (1926Google Scholar). Proposals for supreme court salaries ranged from $ 1,200 to $3,000, with $2,000 finally chosen. (By comparison, the governor's salary was to be $1,500, and a federal district judge then earned $2,500.) See C. Carey, supra note 4 at 370; See also Or. Const, art. XIII, § 1.

44. Or. Const, art. VII, § 21. For debate about the oath, See C. Carey, supra note 4 at 183, 345–47.

45. C. Carey, supra note 4 at 183. Boise's occasional convention eloquence on judiciary issues was consistent both with a disinterested concern for an independent, professional judiciary and with the self-interest of one who aspired to continue on the supreme bench after statehood. He favored a minimum three-year residence requirement, a long term of office (“ten years is not too long”), and the oath requiring judges to renounce all political aspirations during their elected terms. Id. at 182–84, 189, 345–46.

46.

47. For most, the principal sources are brief, repetitive sketches in standard references like H. Scott, supra note 6; Dictionary of Oregon History (H. Corning ed. 1956); Hines, H., An Illustrated History of the State of Oregon (1893)Google Scholar; Hodgkin, F. & Galvin, J., Pen Pictures of Representative Men of Oregon (1882)Google Scholar. Recent biographical compilations by Arthur Benson are available on microfilm at the Oregon State Archives, Salem. On Prim and Boise, See also Snyder, D., The Early Life and Judicial Career of Paine Page Prim 1822–1880 (1979) (M.A. thesis, So. Or. State CollegeGoogle Scholar); Teiser, , Reuben P. Boise, Last Associate Justice of the Oregon Territory Supreme Court, 66 Or. Hist. Q. 5 (1965Google Scholar).

48. For more extensive evaluations of early federal and state judges elsewhere, See sources cited supra note 39; Hall, K., The Politics of Justice: Lower Federal Judicial Selection and The Second Party System 1829–61 (1979)Google Scholar; Wunder, J., Inferior Courts, Superior Justice: A History of the Justices of the Peace on the Northwest Frontier, 1853–1889 (1979)Google Scholar; Guice, J., The Rocky Mountain Bench: The Territorial Supreme Courts of Colorado, Montana, and Wyoming, 1861–1890 (1972)Google Scholar.

49. Reuben Boise graduated from Williams, James Kelly from Princeton, Lewis McArthur from Dickinson, Erasmus Shattuck from Vermont, William Lord from Fairfield, Riley Stratton and Joseph Wilson both from Marietta, Lafayette Mosher from Woodward College in Ohio, John Waldo from Willamette, James Watson from Columbia College in Eugene, and Edward Watson from Pacific University in Forest Grove. Among the best educated were Shattuck, briefly a professor of ancient languages at Pacific, and William Upton, a “lifelong student” with extensive knowledge of Latin and mathematics.

50. By the early nineteenth century virtually all state appellate judges had legal training. See L. Friedman, supra note 39 at 124–26; Warren, C., A History of the American Bar 3–18 (1911)Google Scholar; Chroust, A., The Rise of the Legal Profession in America 3–54 (1965)Google Scholar; 2 Id. at 3–91.

51. Kelly studied at Dickinson, Lord at Albany (New York), P. P. Prim at Cumberland, W.W. Page at Miami (Ohio), and Joseph Wilson at Cincinnati. On Prim's year at Cumberland, where he read Blackstone, Kent, Story, Stephen, Chitty, and Greenleaf, and participated frequently in moots, See D. Snyder, supra note 46 at 4–8.

52. Boise, for example, worked three years with his uncle in Massachusetts, Lord with a federal district judge in Delaware, Shattuck a year and a half in New York, John Waldo with Oregon territorial judge O. C. Pratt in San Francisco, John Kelsay three years in Missouri, John Burnett two years with Kelsay in Corvallis, James Watson with Rufus Mallory in Roseburg, and Edward Watson two years with his brother James.

Oregon's early bar admission procedure was decentralized, and the standards lax. In 1852 the territorial court issued a rule permitting attorneys to practice before it upon admission by a local district judge. 1 Or. 11 (1852). Shortly after statehood, however, Oregon attorneys petitioned for a centralized, “more stringent” admission procedure. In July 1861, the court responded with a rule requiring examinations before it in open court. 2 Or. 14 (1861). The 1862 legislature added requirements that a candidate be 1) a U.S. and Oregon citizen; 2) a person of good moral character; and 3) one with “requisite learning and ability” as determined by the judges. 245 Or. Laws (1862).

Three years later, the court adopted a further rule, specifying texts its examination would cover (Chitty, Wharton, Greenleaf, Blackstone, Kent, Story, and Willard) and requiring an attorney's affidavit as to “the time the applicant may have been engaged in the study of law.” 2 Or. 14 (1865). Then sometime before 1870, it required a minimum of two years of law study, or three if the candidate were not a “graduate of a literary institution.” At the same time, however, it agreed to admit automatically any law school graduate whose degree entitled him to admission in his home state—a privilege it revoked in 1885 after two Oregon law schools opened. 2 Or. 17 (1865); 12 Or. 533–36 (1885). See generally Reed, A., Training for the Public Profession of the Law 67–103, 243–270 (1920)Google Scholar; Aarnas, , Admission to the Bar in Oregon, 1851–1900 (1976) (unpublished paper in author Mooney's possession)Google Scholar.

53. E.g., Shattuck in Vermont, Georgia, Maryland, and Oregon; B.F. Bonham in Indiana and Oregon; Boise in Missouri; Joseph Wilson in Ohio; Wait in New York; and Upton in Michigan.

54. Prim, McArthur, Burnett, Kelly, and James Watson.

55. Wait the Oregon City Spectator and McArthur the Baker Bed Rock Democrat.

56. Mosher in the Mexican War, Lord as a calvary major in the Union Army, and Wait, Kelsay, Burnett, and Kelly in various Indian wars.

57. Lawrence Friedman has described the typically closer connection between nineteenth-century judicial and political careers: “Judgeship, then, was not a lifetime career for all judges. It was a stepping-stone, or a refuge from politics, or a political reward. It was not a distinctive career, with its own distinctive pattern of training and background.” L. Friedman, supra note 39 at 137.

58. Boise, Prim, Shattuck, Lord, Kelly, Bonham, Burnett, Upton, Mosher, Waldo, and James Watson. In addition, Kelsay had been a Missouri legislator, Upton the same in Michigan and California, and Kelly a U.S. senator.

59. Shattuck, Kelly, Wilson, Upton, McArthur, Thayer, and James Watson.

60. After a term as governor, Lord became U.S. Minister to Argentina in 1899. He also was one of three early justices to compile Oregon codes, his being Lord's Oregon Laws (1910). (Boise and Kelly prepared much of the 1854 territorial code; See Peters, , The “First” Oregon Code: Another Look at Deady's Role, 82 Or. Hist. Q. 383 [1981]Google Scholar; Kelly, , History of the Preparation of the First Code of Oregon, 4 Or. Hist. Q. 185 [1903Google Scholar]). In 1914, three years after Lord's death, the Oregon bar chose him as Oregon's greatest chief justice, praising his charity, sound reasoning, and humanitarian views. Dictionary of Oregon History, supra note 47 at 152.

61. In 1880, for example, Republicans Lord, Waldo, and Edward Watson swept out incumbent Democrats Prim and Kelly. The third incumbent, Boise, ran for circuit judge. See infra text accompanying notes 123–32.

62. 4 Lyman, H., History of Oregon: The Growth of an American State 336 (1903Google Scholar).

63. Or. Sec. of State, Biennial Report to Legis. Assembly of 1897–98, at 200–01 (1899). Waldo Lake near the Cascade summit and Waldo Glacier on Mount Jefferson bear his name. The Waldo Hills just east of Salem, however, recall his father Daniel. Mcarthur, L., Oregon Geographic Names 767 (5th ed. 1982).Google Scholar

64. The standard treatment of this subject, relating the rise of universal suffrage for white males to intellectual, political, and geographic influences, is Williamson, C., American Suffrage: From Property to Democracy 1760–1860 (1960).Google Scholar Fora briefer but insightful treatment, See Elliott, W., The Rise of Guardian Democracy: The Supreme Court's Role in Voting Rights Disputes 1845–1969, at 34–54 (1974).CrossRefGoogle Scholar

65. As the Civil War began, only six northeastern states did not explicitly prohibit black voting. Even in those six, various forms of social pressure or a special property requirement effectively denied the franchise to most blacks. W. Elliott, supra note 64 at 40–43; See also Porter, K., A History of Suffrage in the United States 47–77, 117 (1918Google Scholar); Weeks, , The History of Negro Suffrage in the South, 9 Pol. Sci. Q. 671, 679 (1894CrossRefGoogle Scholar).

Between 1865 and 1869 voters in ten northern states and territories plus the District of Columbia all rejected black suffrage; only Iowa and Minnesota voters approved it, both in 1868. W. Elliott, supra at 56; Gillette, W., The Right to Vote: Politics and the Passage of the Fifteenth Amendment 25–27 (1965)Google Scholar. Even the Fifteenth Amendment failed to promote substantial black voting in the South until federal courts began to intervene half a century later. Id. at 62–84; See generally Hyman, H. & Wiecek, W., Equal Justice Under Law: Constitutional Development 1835–1875, at 439–515 (1982)Google Scholar; Mathews, J., Legislative and Judicial History of the Fifteenth Amendment (1909).Google Scholar

66. Women first won the vote in Wyoming (1869), Utah (1870), Washington (1883 temporarily), Idaho (1896), and Colorado (1903), as men in the West recognized comparatively early either the justice or the public-relations advantage of such reform. See generally Clinton, C., The Other Civil War: American Women in the Nineteenth Century (1984)Google Scholar; Flexner, E., Century of Struggle: The Women's Rights Movement in the United States (rev. ed. 1975)Google Scholar; Stanton, E. et al. , The History of Women's Suffrage (6 vols. 1881–1922Google Scholar); Larson, , Woman Suffrage in Wyoming, 56 Pac. N.Q. 57 (1965Google Scholar); Ault, , The Earnest Ladies: The Walla Walla Woman's Club and the Equal Suffrage League of 1886–1889, 42 Pac. N.Q. 123 (1951Google Scholar).

67. As early as 1843, Oregon's first Organic Act granted the right to vote and hold political office to every “free male descendant of a white man.” The Oregon Archives 1841–1843, 60 Or. Hist. Q. 211, 256 (Duniway, & Riggs, eds. 1959Google Scholar). For similar 1857 constitutional language, See infra note 70 and accompanying text.

68. See infra text accompanying notes 87–103.

69. Led by the incomparable Abigail Scott Duniway, Oregon suffragists struggled through six statewide referenda before finally winning the vote for women in 1912. See generally Moynihan, R., Rebel for Rights: Abigail Scott Duniway (1983)Google Scholar; Duniway, A., Path Breaking: An Autobiographical History of the Equal Suffrage Movement in the Pacific States (1914)Google Scholar; Kessler, , A Siege of the Citadels: Search for a Public Forum for the Ideas of Oregon Woman Suffrage, 84 Or. Hist. Q. 117, 257 (1983Google Scholar).

70. Or. Const, art. II, §§ 2, 3, 6. For convention debates on Article II, See C. Carey, supra note 4 at 318–26, 336–41.

71. Or. Const, art. II, §§ 1, 7–10. The debate on Section 1 included the following exchange:

Mr. Deady wanted to know what the word “free” meant?

Mr. Smith said it did not mean Chinese or niggers. He thought the term sufficiently explicit.

C. Carey, supra note 4 at 318. Delegate Perry Marple urged that dueling was “an honorable and gentlemanly mode of settling difficulties” and that to disenfranchise duelers “was to protect the cowardly and low-minded.” Id. at 323–26.

72. Or. Const, art. II, § 15: “In all Elections by the Legislative Assembly, or by either branch thereof, votes shall be given openly or viva voce, and not by ballot, forever; and in all elections by the people, votes shall be given openly, or viva voce, until the Legislative Assembly shall otherwise direct.” For the extensive debate on this section, See C. Carey, supra note 4 at 325–26, 329, 331, 337, 338, 346. Enacted first in 1855 to enforce territorial Democratic party discipline against secret Know-Nothing defections, viva voce voting remained a subject of partisan bombast in Oregon until its 1872 repeal for popular elections. See 1855 Or. Laws 76; 1872 Or. Laws 39; W. Woodward, supra note 4 at 68, 72, 75, 187, 211–12, 234; Knuth, , Oregon Know Nothing Pamphlet Illustrates Early Politics, 54 Or. Hist. Q. 40 (1953Google Scholar).

73. 1845–64 Or. Laws 697–708.

74. 1862 Or. Laws 104 05; 1845–64 Or. Laws 696, 701.

75. 1865 Or. Laws 32–35; 1870 Or. Laws 22–23.

76. Such multiple duties were common in other new jurisdictions as well. See, e.g., L. Friedman, supra note 39 at 32–49; Haskins, G., Law and Authority in Early Massachusetts 25–42 (1968)Google Scholar; 1 Buley, R., The Old Northwest: Pioneer Period, 1815–1840, at 77–78 (1950)Google Scholar.

77. An instance of blurred jurisdictional lines was Town of La Fayette v. Clark, 9 Or. 225 (1881) (writ of review, but not an appeal, lay from decision by town recorder acting as magistrate).

78. 2 Or. 246 (1867).

79. 1864 Or. Spec. Laws 5. The early Oregon legislature doled out power sparingly to cities and towns, amending charters piecemeal at every legislative session as municipalities pressed particular new needs upon it. Partly an effort to control sometimes corrupt local governments, this unsystematic approach occasionally had the opposite effect. See, e.g., Gaston, J., Portland Oregon: Its History and Builders 336–37 (1911).Google Scholar

80. Technically the state sued on Rosenheim's behalf, as authorized by 1845–64 Or. Laws 237–38.

81. Oregon Herald, Aug. 11, 1867, at 2, col. 1. On Williams, a territorial chief justice, U.S. senator, U.S. attorney general, President Grant's unconfirmed nominee for Chief Justice, and at age 79 mayor of Portland, See Teiser, , Life of George H. Williams: Almost Chief Justice, 47 Or. Hist. Q. 266, 417 (1946Google Scholar); Christensen, O., The Grand Old Man of Oregon: The Life of George H. Williams (1937) (M.A. thesis, University of OregonGoogle Scholar).

82. Oregonian, Aug. 16, 1867, at 2, col. 1.

83. Recall that by 1867 both former Whig Shattuck and former Democrat Boise had become Republicans; that Wilson was a Republican; and that Prim remained a lifelong Democrat. See supra text near note 57.

84. See supra note 45 and accompanying text.

85. 2 Or. at 248–49.

86. 2 Or. at 249. For partisan editorial reactions to the decision, See Oregonian, Aug. 30, 1867, at 2, col. 1; Id., Sept. 25, 1867, at 2, col. 1 (“It is decided that … a member of the Council cannot, by disposing of his vote in such manner as to advantage others, buy his way into a more profitable office.”); Oregon Herald, Aug. 31, 1867, at 2, col. 1; id. Sept. 26, 1867, at 2, col. 1 (Hoyt's fees had increased his income to four times that of the governor; the court's decision was a “determination of a party contest by a party Court”; the “public policy” and “incompatibility” grounds were as “vague and indefinite as the plea of ‘military necessity’ under which thousands of crimes against law have been committed”) See generally Tracy, C., The Evolution of the Police Function in Portland, Oregon, 1811–1874, at 190–95 (1976) (Ph.D. dissertation, University of CaliforniaGoogle Scholar).

Three years later, in 1870, the legislature modernized Portland law enforcement by replacing the city marshal and recorder with: 1) a governor-appointed board of police commissioners to organize modern, professional law enforcement forces; and 2) an elected police judge to try ordinance violations and act as a citywide justice of the peace. 1870 Or. Spec. Laws 129–135. The legislation recited that the city marshal and recorder had “proved inefficient to maintain the peace and good order of the city,” id. at 135. Perhaps a more immediate motive was the Democratic legislature's desire to take control of the Portland police from local Republicans. See C. Tracy, supra note 86 at 209–13. On police modernizations elsewhere, See Monkkonen, E., Police in Urban America, 1860–1920, at 30–64 (1981)CrossRefGoogle Scholar; Walker, S., Popular Justice: A History of American Criminal Justice 59–65, 133–45 (1980).Google Scholar

87. See generally Mclagen, E., A Peculiar Paradise: A History of Blacks in Oregon, 1788–1940 (1980)Google Scholar; Clark, supra note 14; Richard, supra note 4; Mooney, , Matthew Deady and the Federal Judicial Response to Racism in the Early West, 63 Or. L. Rev. 561 (1984Google Scholar).

88. Or. Const, art. II, § 1; See supra notes 63–64 and accompanying text.

89. U.S. Const, amend. XV; See supra note 16 and accompanying text.

90. 3 Or. 568 (1870). For Justice Whitten's circuit decision in Wood and three related cases, See Darragh v. Bird, 3 Or. 229 (1870).

91. 3 Or. at 230–46. Democratic Portland newspapers alleged party politics, See, e.g., Oregon Herald, Aug. 14, 1870, at 2, col. 1, and the Oregonian responded in kind: “It Seems impossible for such Democratic papers as the Herald and the Enterprise to conceive of an act, judicial or otherwise, performed without an ulterior view to political effect. With them, verily, out of the fullness of the heart, the mouth speaketh.” Oregonian, Aug. 15, 1870, at 2, col. 1.

92. 3 Or. at 571.

93. Or. Const, art. II, § 4.

94. 3 Or. at 572–73 (citing People ex rel. Budd v. Holden, 28 Cal. 124, 137–38 (1865)).

95. Or. Const, art. II, § 3 provided, “the privilege of an elector shall be forfeited by a conviction of any crime which is punishable by imprisonment in the penitentiary.” It was silent on the effect of a pardon.

96. The doctrine of pardons, as now recognized and applied by civilized nations has its origin in Divine law, upon which rests the merciful administration of human justice, and finds its sanction in the rules of political and social ethics, which have been firmly established and approved by the wisdom of ages…. After careful consideration of the law as it exists, and the abundant authorities on this point, we can arrive at no other consistent or satisfactory conclusions than that a general absolute pardon relieves the offender not only from imprisonment but from all the consequential disabilities of the judgment of conviction, and restores him to the full enjoyment of his civil rights.

3 Or. at 574–75, citing 4 W. Blackstone, Commentaries *402; 6 Bacon, M., A New Abridgment of the Law 133–46 (7th ed. 1832)Google Scholar; Hawkins, W., A Treatise of the Pleas of the Crown 392, 396 (2d ed. 1724)Google Scholar; People v. Pease, 3 Johns. Cas. 333 (1803); Matter of Deming, 10 Johns. 232 (1813); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866).

97. 3 Or. at 577.

98. Id. at 579.

99. The manner of the adoption of this amendment is a matter of history, and while individuals may be constrained to believe it an unwise measure of government policy, and while the very peculiar circumstances attending its ratification by the legislatures of some of the states render it obnoxious to exception, yet in view of the ascertained facts in this case, we cannot do otherwise than declare it to be a valid amendment to the federal constitution.

Id.

100. Id. at 579–80.

101. Or. Const. art. II, § 17.

102. 3 Or. at 582.

103. About the time of Wood there arose a potentially memorable election case which, alas, never reached the court. In June 1870, Justice Boise ran for reelection against Democrat B. F. Bonham. The first reported returns gave Bonham a 645-601 edge, but a month later Boise somehow had a majority of 18. Oregonian, June 12, 1870, at 2, col. 2; July 9, 1870, at 2, col. 3. Boise remained on the bench amid charges by his own party's leading newspaper that the Republicans had lost Polk County because he and other party leaders had adopted the “mistaken policy of opposing every leading measure of the National Republican party.” Id., July 13, 1870, at 2, col. 1.

Boise responded with a denial, contending that he had supported all reconstruction measures except the Fifteenth Amendment; and that even it had become “a part of the Federal Constitution” so should be “respected and protected in as good faith as any other rights guaranteed by any part of our fundamental law.” Id., July 16, 1870, at 2, col. 3; See also id, July 19, 1870, at 2, col. 1; July 25, 1870, at 1, col. 7; July 27, 1870, at 2, col. 1. The following January, however, Bonham sued in Boise's circuit court alleging that he, not Boise, had “received the highest number of official votes” and that Boise had “usurped” the office. Boise filed a brief, unrevealing demurrer; Bonham then moved to change venue. The next document appearing in the circuit court file is an order reciting that Boise has “withdrawn” his demurrer and elected not to plead further; and declaring Bonham “entitled to said office for the term mentioned in the complaint.” Order, State ex rel. Bonham v. Boise (Marion County Cir. Ct., June 26, 1871). Curiously, no newspaper account of the case reveals anything about the underlying facts or allegations, and every reference to it in Boise biographical material recites some platitude such as this:

After being again chosen in 1870 his seat was vigorously contested by Hon. B.F. Bonham, and rather than engage in long and expensive litigation Judge Boise resigned his office and returned to the practice of law.

Portrait and Biographical Record of Western Oregon 592 (1904Google Scholar); See also Teiser, supra note 47 at 20-21.

104. Or. Const, art. II, § 7.

105. 1843-1872 Or. Laws 428 (declaring it unlawful to “give, offer or promise to give any gift, gratuity… or thing whatever to any voter… with intent to influence or induce such voter to vote … for or against a particular person”).

106. Bill of Exceptions, State ex. rel. Church v. Dustin (Grant County Cir. Ct., June 12, 1875).

107. Or. 375 (1875).

108. Id. at 377.

109. Id. at 378.

110. Id. at 380-81 (quoting State ex. rel. Newell v. Purdy, 36 Wis. 213 (1874)).

111. Dustin apparently retained his office. The trial court file reveals no effort by Church to amend, only by Dustin to recover costs.

A political interpretation of the technical holding is possible, for Dustin was a Democrat (though he ran against Church as an Independent), and Church's attorney was Republican Benoni Whitten who had served on the court four months by appointment in 1870 until losing to McArthur in that year's election. More likely, however, the court was concerned less about party labels than about possible consequences for Dustin and Grant county litigants of a decision that Dustin had served a year unlawfully. Dustin himself had contended (and McArthur on circuit had agreed) that only an act constituting a felony would justify his removal, and the court could hardly have wished to suggest that severe a sanction. Moreover, a decision that a county judge had sat without authority for a year might well have rendered all his rulings void, creating havoc for many who had relied on them. See e.g., infra notes 128-37 and accompanying text.

112. See, e.g., Dillon, J., The Law of Municipal Corporations 262-66 (2d ed. 1873)Google Scholar; McCrary, G., A Treatise on the American Law of Elections 220-22 (1875)Google Scholar.

113. 8 Or. 493 (1880). For preliminary procedural maneuvering in the case, See State ex rel. Mahoney v. McKinnon, 8 Or. 485 (1880); Id., 8 Or. 487 (1880).

114. 1878 Or. Special Laws 123.

115. 8 Or. at 498.

116. Id. at 499 (quoting Commonwealth v. Allen, 70 Pa. 465 [1872]).

117. Id. (quoting 1 J. Dillon, supra note 112 at 263). The court also invoked People ex rel. Hatzet v. Hall, 80 N.Y. 117 (1880), “an exhaustive and very able discussion of the whole subject,” featuring both “authority” and “sound reason.” 8 Or. at 499.

118. 1872 Or. Laws 46.

119. 8 Or. at 500. The court's principal authorities for the “correct principle” were G. McCrary, supra note 112 at 308-08 and Kirk v. Rhoads, 46 Cal. 399 (1873).

120. 9 Or. 437 (1881).

121. Joseph Simon, prominent Portland corporate attorney, was “the most powerful political force in Oregon politics from 1880-1910.” E. MacColl, supra note 20 at 60. His offices included city councilor 1877-80; state senator 1880-91, 1895-98; U.S. senator 1898-1903, and mayor 1909-11. In 1881 he led Portland's “ring republican” ticket, which even the staunchly Republican Oregonian denounced: “The city has been disgraced and plundered by ring partisanship for years past.… The great object of ring politics is to make the city treasury support ring politicians…. Over three thousand votes will probably be thrown [bought] today.” Oregonian, June 20, 1881, at 2, col. 1; See also id., June 21, 1881, at 2, col. 1; June 24, 1881, at 2, col. 1; July 7, 1881, at 2, col. 2; July 11, 1881, at 2, col. 1.

122. For bribery allegations involving two council members, See Oregonian, July 8, 1881, at 2, col. 2; See also id., July 9, 1881, at 2, col. 1; July 12, 1881, at 2, col. 2; July 13, 1881, at 2, col. 1; July 14, 1881, at 2, col. 1; July 16, 1881, at 2, col. 2; July 18, 1881, at 2, col. 1.

123. Oregonian, July 24, 1881, at 2, col. 2; August 4, 1881, at 3, col. 4. D.P. Thompson was himself no paragon of civic virtue. See E. MacColl, supra note 20 at 101-02, 196.

124. See 9 Or. at 441.

125. Certiorari was the predecessor to Oregon's writ of review. See 1845-64 Or. Laws 294. For other early decisions examining the writ of review, See Thompson v. Multnomah County, infra notes 275-80 and accompanying text; Evans v. Christian, 4 Or. 375 (1873) (writ not available where right of appeal exists); Burnett v. Douglas County, 4 Or. 388 (1873) (in case involving “matter of public interest,” trial court has unreviewable discretion whether to allow writ); Poppleton v. Yamhill County, 8 Or. 337 (1880) (writ of review primarily to consider alleged errors of law, not findings of fact).

126. 9 Or. at 445.

127. Id. at 451.

128. 1878 Or. Laws 31. Or. Const, art. VII, § 10 provided:

When the white population of the State shall amount to Two Hundred Thousand the Legislative Assembly, may provide for the election of the Supreme, and Circuit Judges, in distinct classes, one of which classes shall consist of three Justices of the Supreme Court, who shall not perform Circuit duty, and the other class shall consist of the necessary number of Circuit Judges,…

See supra note 40 and accompanying text.

129. Democratic Governor Thayer, younger brother of former justice Andrew Jackson Thayer, appointed to the supreme court incumbent Democrat P. P. Prim, incumbent Independent Reuben P. Boise, and, as Chief Justice, Democrat James K. Kelly. All were worthy appointees, though perhaps overlooked incumbents Shattuck, McArthur, and James Watson did not agree. Each had been a constitutional convention delegate; Prim had served on the court continuously since statehood; Boise had served from 1859 until 1870, then again beginning in 1876. Kelly had been a member of both the territorial and state legislatures, the principal drafter of Oregon's first procedure code, and a United States Senator 1871-77. See, e.g., Peters, supra note 60; Kelly, supra note 60.

130. 7 Or. 17 (1879).

131. In 1880 the voters elected three Republicans to the court, William Lord, John Waldo, and Edward Watson, who defeated Prim, Kelly, and John Burnett. Former justices Boise, McArthur, and James Watson ran successfully for circuit judge.

The interim-appointed court had decided several unusually controversial cases, and came under heavy newspaper attack by losing litigants and their counsel. Portland attorney Sidney Dell led the attack, beginning with an unsigned letter in mid-1879 to the Portland Sunday Mercury accusing the justices of plotting “to repeal the statute of wills, to destroy dower, to set aside securities for loans of money, to make mortages a sham, vested rights a jest and the protection of the lives of our humble citizens a subject of derision.” Oregonian, June 5, 1880, at 1, col. 4.

According to Dell, Justices Prim and Kelly then summoned him before the court to inquire about authorship of the letter and threatened to disbar him for casting the court into “disrepute.” Dell did not relent, however, and on the eve of the 1880 election he published a series of scathing letters accusing Prim and Kelly of attempting “to stifle the rights of freemen” everywhere. Oregonian, May 28, 1880, at 1, col. 3; June 2, 1880, at 1, col. 3; June 5, 1880, at 1, col. 4. Attorney G.L. Lawson was only slightly more restrained, charging that the appointed court consisted of “old attorneys” with “binding political relations” and “partialities among practitioners.” Oregon Statesman, April 18, 1880, at 2, col. 3.

Naturally the court had its defenders as well. Attorneys William H. Effinger and J. F. Gazley filed affidavits charging Dell with contempt for his remarks concerning cases they had tried. D. Snyder, supra note 47 at 72; Oregon Statesman, January 9, 1880, at 2, col. 1; at 3, col. 3; id., Jan. 17, 1880, at 3, col. 3. The Jacksonville Democratic Times charged three days before the election that a greedy “monopolist” of the Canyonville & Galesville Road Company was responsible for much of the calumny. D. Snyder, supra at 75-76; See Douglas County Road Co. v. Canyonville & Galesville Road Co., 8 Or. 102 (1879). And the Pendleton East Oregonian fought fire with fire:

Sidney Dell, who at the time of the battle of Iuka, was in the rear of the Confederate Army strapped to a 20 lb. cannon, receiving 40 stripes for desertion, is trying to put on an air of respectability as a Republican ally in this country and… [trying] to convince [Oregonians] that they should not vote for Prim or Kelly for Supreme Judges, simply because forsooth they did not decide certain cases against law and in Dell's favor.

East Oregonian, May 29, 1880, at 2, col. 2. In truth, Prim and Kelly might well have lost even without the controversy. It was Prim's first race outside his own judicial district, and Republicans swept most state offices in 1880.

132. Or. Const, art. VII, § 2 directed that initially justices be “chosen in districts by the electors thereof…,” and § 10 extended the election requirement to the new two-tier system: “the Legislative Assembly may provide for the election of Supreme, and Circuit Judges,…” See supra note 128.

133. 10 Or. 230 (1882).

134. Id. at 237.

135. Id., citing Collins v. State, 8 Ind. 350 (1856); Stocking v. State, 7 Ind. 326 (1855); State ex rel. Henderson v. County Court, 50 Mo. 317 (1872).

136. 10 Or. at 240.

137. Id. at 240-41. The four state chief justices were Theophilus Parsons (1806-13) and Lemuel Shaw (1830-60) of Massachusetts, William Tilghman (1806-27) of Pennsylvania, and John Savage (1823–36) of New York.

The 1878 transition to distinct judicial classes survived a federal-court challenge as well. A state-court jury presided over by an interim circuit judge convicted Ah Lee of murder, and the interim Supreme Court affirmed. State v. Ah Lee, 8 Or. 214 (1880). Ah Lee then sought a habeas corpus writ from federal judge Matthew Deady, contending that the 1878 legislation violated the state constitution, and therefore federal due process, in two ways: 1) it was premature, enacted before the state's population had reached 200,000; and 2) the appointment procedure violated the election requirement.

Judge Deady also declined to overturn two years of state judicial proceedings. He found it unnecessary to rule on the constitutionality issues because even if the interim judges had not been “de jure” they at least had been “de facto.” Therefore, for reasons of “public convenience and utility,” their acts while so in office were “valid and binding.” In re Ah Lee, 5 F. 899, 907, 913 (1880). Deady later memorialized in his diary the sad spectacle of Ah Lee's execution: “Poor Ah Lee was hung amid the jeers and scoffs of a brutal mob of aliens that the sheriff had invited to witness the proceedings. Shame.” 1 Pharisee Among Philistines, supra note 9 at 303.

Two years later at the time of Cline, however, Deady expressed disagreement with Chief Justice Lord's rationale:

Judge Lord called on Tuesday evening and read … an opinion on … the appointment of the judges Kelly, Boise & Prim under the act of 1878. We talked it over. I suggested that while the Legislature had power to provide for the election of the Justices of the S[upreme] C[ourt] and C[ircuit] C[ourt] in separate classes, that they couldn't do it otherwise, as by appointment, and they must therefore provide for doing it at the next general election thereafter and not otherwise. But his head is set that the passage of the act created the three offices of Justice of the SC and that the Gov could fill them until election, even without the provision in the act to that effect, under the Constitution, as existing vacancies.

2 id. at 392.

138. See generally Hurst, J., A Legal History of Money in the United States, 1774-1970 (1973)Google Scholar; Unger, I., The Greenback Era: A Social and Political History of American Finance, 1865-1879 (1964)CrossRefGoogle Scholar; Dunne, G., Monetary Decisions of the Supreme Court (1960)Google Scholar; Sharkey, R., Money, Class, and Party: An Economic Study of Civil War and Reconstruction (1959)Google Scholar; Hammond, B., Banks and Politics in America from the Revolution to the Civil War (1957)Google Scholar; Redlich, F., The Molding of American Banking (1947-51)Google Scholar; and Mitchell, W., A History of the Greenbacks (1903).Google Scholar

139. The primary federal revenue source in 1861 remained customs duties, with first-quarter receipts totalling nearly $10,000,000. In April of that year, however, protectionist tariff legislation went into effect, causing receipts to drop sharply just as the war began. Treasury Secretary Salmon Chase's December estimates were that fiscal 1862 receipts would approximate $35,000,000 while expenditures would exceed $530,000,000. R. Sharkey, supra note 138 at 17-28; I. Unger, supra note 138 at 13-15; W. Mitchell, supra note 138 at 1015.

140. 12 Stat. 345 (1862). Similar acts, each authorizing a like amount, followed in July 1862 and March 1863. 12 Stat. 532 (1862); 12 Stat. 710 (1863). See generally W. Mitchell, supra note 138 at 44-118; R. Sharkey, supra note 138 at 29-50; Barrett, D., The Greenbacks and Resumption of Specie Payments, 1862-1879, at 3–78 (1931).CrossRefGoogle Scholar

In Hepburn v. Griswold, 75 U.S. 603 (1869), a five-member Supreme Court majority held the legal tender acts unconstitutional as violations of both Fifth Amendment due process and the contract clause. See generally 2 Warren, C., The Supreme Court in United States History 498-513 (1926)Google Scholar; G. Dunne, supra note 138 at 67-76. Thirteen months later, with Justices Strong and Bradley added to the Court, a new majority of five reversed Hepburn, upholding the acts for both prior and subsequent debts. Legal Tender Cases, 79 U.S. 457 (1870); 2 C. Warren, supra at 515-32; G. Dunne, supra at 76-83. Among the ten Justices who heard one or both cases, and the more than sixty state court judges who heard similar ones, every Democrat voted to overturn the acts, and every Republican save one voted to uphold them. Fairman, C., Mr. Justice Miller and the Supreme Court 153, 160 (1939Google Scholar); See also Fairman, , Mr. Justice Bradley's Appointment to the Supreme Court and the Legal Tender Cases, 54 Harv. L. Rev. 977, 1128 (1941CrossRefGoogle Scholar).

141. I. Unger, supra note 138 at 16.

142. 12 Stat. 432, 473 (1862); 12 Stat. 713, 718 (1863); 13 Stat. 218, 281-85 (1864); 13 Stat. 417 (1864); 13 Stat. 468, 479-81 (1865); 14 Stat. 98, 138 (1866); 14 Stat. 471, 479-80 (1867); 16 Stat. 256, 257-62 (1870). See generally Ratner, S., American Taxation: Its History as a Social Force in Democracy 57-99 (1942)Google Scholar; Smith, H., The United States Federal Internal Tax History from 1861 to 1871 (1914)Google Scholar; Seligman, E., The Income Tax: A Study of the History, Theory, and Practice of Income Taxation at Home and Abroad 430-81 (1911).Google Scholar

143. Ellis, , Public Opinion and the Income Tax, 1860-1900, 77 Miss. V. Hist. Rev. 225, 230–235 (1940Google Scholar).

144. By the late 1870s opponents were routinely “substituting denunciation for argument.” Id. at 233. Former revenue commissioner David Wells, in an influential North American Review article, condemned any income tax with an exemption as “unmasked confiscation” and “flagrant spoliation.” Wells, The Communism of a Discriminating Income Tax, North Am. Rev., March 1880, at 236-46. The standard epithet directed then at virtually any tax, of course, was “communism” or, worse yet to E. L. Godkin, “European Communism.” Nation, May 2, 1878, at 287, quoted in Ellis, supra note 143 at 233. The era's most notable tax reformer, Henry George, approved of efforts to reduce wealth concentrations, but favored a “unitary tax” over an income tax. H. George, supra note 37 at 224.

145. 28 Stat. 509 (1894). See generally S. Ratner, supra note 142 at 168-192; E. Seligman, supra note 142 at 493-530; Paul, A., Conservative Crisis and the Rule of Law 159-84 (1960)Google Scholar. A divided Supreme Court held the new tax unconstitutional the next year. Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895); id., 158 U.S. 601 (1895). Justice Field, concurring, expressed the fears of many that the “present assault upon capital is but the beginning.” 157 U.S. at 607. Justice Harlan in dissent charged the majority with promoting a “dominion of aggregated wealth.” 158 U.S. at 685. See also S. Ratner, supra at 193-214; A. Paul, supra at 185-220.

146. The politics of postwar currency debates do not reduce easily to traditional party or even interest-group labels. On the whole, hard-money advocates responded to conscience, duty, prevailing economic theory, and, of course, self-interest. Most were Republicans, representing an “older elite of eastern merchants, commercial bankers, textile manufacturers, professional men, gentlemen reformers, and respectable literati.” I. Unger, supra note 138 at 162; See generally id. at 25-40, 120-62; R. Sharkey, supra note 138 at 82-134, 221-71. Most Democrats, representing primarily labor and agrarian groups, generally favored the more expansionist, more hazardous soft-money policies. Id. at 135-40, 174-220; See generally Hepburn, A., A History of Currency of the United States 179-227 (1967)Google Scholar; Friedman, M. & Schwartz, A., A Monetary History of the United States 1867-1960, at 15–88 (1963).Google Scholar

147. 14 Stat. 31 (1866); See also I. Unger, supra note 138 at 41-42; R. Sharkey, supra note 138 at 56-80; A. Hepburn, supra note 146 at 207-08; M. Friedman & A. Schwartz, supra note 146 at 24, 44.

148. 15 Stat. 34 (1868); 16 Stat. 1 (1869); See also I. Unger, supra note 138 at 43; R. Sharkey, supra note 138 at 107-15, 124-29; A. Hepburn, supra note 146 at 210-14; M. Friedman & A. Schwartz, supra note 146 at 44-46.

149. I. Unger, supra note 138 at 163, 164.

150. 18 Stat. 123 (1874); See also I. Unger, supra note 138 at 245-48.

151. 18 Stat. 296 (1875); See also I. Unger, supra note 138 at 249-85; D. Barrett, supra note 140 at 181-93; M. Friedman & A. Schwartz, supra note 146 at 44-50, 79-85. In context, the Resumption Act was “as much a victory for soft as for hard money.” I. Unger, supra at 254. It authorized immediate free banking, provided only that $80 of greenbacks be redeemed for each $ 100 of banknotes issued, and postponed resumption four long years to give Congress a chance to change its mind again.

152. M. Friedman & A. Schwartz, supra note 146 at 17. Among the best general histories of early American banking are B. Hammond, Banks and Politics in America from the Revolution to the Civil War (1957); Myers, M., A Financial History of the United States (1970)Google Scholar; Redlich, F., The Molding of American Banking: Men and Ideas (1947–51)Google Scholar; Helderman, L., National and State Banks (1931).Google Scholar

153. I. Unger, supra note 138 at 17.

154. In 1791, Congress chartered the First Bank of the United States for twenty years. 1 Stat. 191 (1791). Despite its success in stabilizing currency, controlling wildcat state banking, and making generally sound loans, strong opposition in state banking circles persuaded Congress not to renew its charter in 1811. B. Hammond, supra note 152 at 197-226; F. Redlich, supra note 152 at 96-100; J. Holdsworth, First Bank of the United States (1910). In 1816 Congress chartered the Second Bank, 3 Stat. 266 (1816), which had a similar history ending with Andrew Jackson's celebrated 1832 veto of its charter renewal. B. Hammond, supra at 286-325; F. Redlich, supra at 162-77; McFaul, J., The Politics of Jacksonian Finance (1972).Google Scholar

155. Between 1830 and 1837, for example, the number of state banks doubled, and note issue nearly tripled. M. Myers, supra note 152 at 94. Then during the next decade, following the panic, “hundreds of banks failed leaving the nation's financial system virtually a wreck.” Fischer, G., American Banking Structure 175 (1968Google Scholar); See generally L. Helderman, supra note 152.

On state bank authority to issue banknotes, See Briscoe v. Bank of Kentucky, 36 U.S. (1 Peters) 257 (1837); Craig v. Missouri, 29 U.S. (4 Peters) 410 (1830); G. Dunne, supra note 138 at 37-44; 1 C. Warren, supra note 140 at 725-27; 2 id. at 27-29.

156. By 1857, for example, seven state constitutions prohibited bank charters. M. Myers, supra note 152 at 122; See also B. Hammond, supra note 152 at 605-30; G. Fisher, supra note 155 at 17.

157. See 12 Stat. 665 (1863); 13 Stat. 99 (1864); 13 Stat. 469, 484(1865); L. Helderman, supra note 152 at 9-14, 133-58; M. Myers, supra note 152 at 123.

158. See supra note 43.

159. Or. Const, art. I, § 32; art. IX, §§ 1-3. The requirement that taxes be levied equally on all property meant that “only the general property tax was available for any and all revenues for state and local needs.” Young, , Financial History of Oregon, 10 Or. Hist. Q. 263, 272 (1909Google Scholar). (Other installments of Young's, F. G. very thorough work appear at 7 Or. Hist. Q. 360 [1906]; 8Google ScholarOr. Hist. Q. 129 [1907Google Scholar]; 10 Or. Hist. Q. 366 [1909Google Scholar]; 11 Or. Hist. Q. 121, 286, 403 [1910Google Scholar]; 12 Or. Hist. Q. 86 [1911Google Scholar]).

160. Or. Const, art. XI, §§ 6, 7; See also id. §§ 8-10. By 1840, state internal-improvement debt totalled nearly $300,000,000, and a dozen states had failed to make either principal or interest payments as they became due. Jacobs, C., Law Writers and the Courts 14-15 (1954)Google Scholar; See generally Heins, A., Constitutional Restrictions Against State Debt (1963)Google Scholar. Early Oregonians were well aware of those events. “The lessons taught by… rash public participation in internal improvements by many of the states and municipalities of the Middle West in the preceding decades were still fresh in the minds of those who emigrated to the Pacific Coast.” Young, supra note 159, 10 Or. Hist. Q. 263, 276.

161. Or. Const, art. XI, § 1. See infra notes 222-34 and accompanying text. “Many before leaving for the Pacific Slope had no doubt at one time or another been touched by the evils attending the use of state and private banks of issue.” Young, supra note 159, 10 Or. Hist. Q. 263, 266.

162. D. Johansen & C. Gates, supra note 6 at 263; See also Young, supra note 159, 10 Or. Hist. Q. 263, 268.

163. 1859 Or. Laws 36; See also Young, supra note 159, 11 Or. Hist. Q. 286.

164. Young, supra note 159, 11 Or. Hist. Q. at 292. For the first poststatehood poll tax, See 1862 Or. Laws 89; for the first military tax, and its repeal, See 1862 Or. Laws 16; 1865 Or. Laws 6. Various licensing statutes, including several discriminating against Chinese, appear at 1860 Or. Laws 49; 1845-64 Or. Laws 746, 776, 869. See generally Young, supra note 159, 10 Or. Hist. Q. 266, 282-87.

165. 1845-64 Or. Laws 893-915; 1843-72 Or. Laws 748-770. Because each taxpayer's share of state taxes depended on the county assessor's valuation, pressure on each assessor to undervalue property within his county soon became very great. Young, supra note 159, 10 Or. Hist. Q. 263, 272-73.

166. 1870 Or. Laws 52-53; 1845-64 Or. Laws 294-96. The court enforced the jurisdictional requirements of taxation review procedures with exceptional strictness. See, e.g., Rhea v. Umatilla County, 2 Or. 298 (1868) (the taxpayer's sole remedy past the county court was by writ of review); Paul L. Shumway & Bros. v. County of Baker, 3 Or. 246 (1870) (county court without authority to correct valuation). See also Oregon Steam Navigation Co. v. Wasco County, 2 Or. 200 (1867).

167. See infra notes 201, 206 and accompanying text; 1845-64 Or. Laws 745-48 (1864).

168. The 1864 Portland city charter granted the council power to improve streets and assess the cost to adjoining landowners. 1864 Or. Special Laws 17-19. For the lien procedure, See id. at 19-21, and for the “equal and uniform” requirement, See Or. Const, art. I, § 32.

169. 2 Or. 146 (1865).

170. Id. at 152.

171. Early Oregon courts, like their modern counterparts, had equity jurisdiction only when a complainant had no “plain, adequate and complete remedy at law.” 1843-72 Or. Laws 189. Because the city charter made portions of council assessment proceedings “final,” however, a dissatisfied landowner was indeed “in proceedings at law remediless.” 2 Or. at 151. Besides, added the court, decisions from Minnesota, Michigan, Wisconsin, and Ohio indicated that “in suits of this character, courts have paid little or no attention to the objection to the jurisdiction.” Id.

172. Id. at 152 (citing Ex parte McCollum, 1 Cow. 550 [N.Y. 1823]); Clarke v. City of Rochester, 24 Barb. 446 ([N.Y. 1857]; People v. Board of Supervisors of Orange, 27 Barb. 575 [N.Y. 1857]).

173. Id. at 152-53 (emphasis in original) (citing Smith, E., Commentaries on Statute and Constitutional Law 261, 266 [1848Google Scholar]). For more modern statements of the point, See Hurst, J., The Growth of American Law: The Law Makers 241 (1950Google Scholar); Linde, , Without “Due Process”: Unconstitutional Law in Oregon, 49 Or. L. Rev. 125, 146–51 (1970Google Scholar).

174. 2 Or. at 153.

175. Id. at 157-59 (citing decisions from New York, Maryland, Pennsylvania, Ohio, Michigan, and Missouri).

176. Or. Const. art. I, § 32 read in full: “No tax or duty shall be imposed without the consent of the People, or Their Representatives in the Legislative Assembly; and all taxation shall be equal and uniform.”

177. 2 Or. at 160.

178. The legislature incorporated East Portland in 1870, two years after the eastside faction of the Oregon Central Railroad began laying track southward from there. 1870 Or. Special Laws 141-58; see supra notes 29-32 and accompanying text. For the exemption from county roadbuilding jurisdiction, see 1872 Or. Special Laws 181-82; for the 1891 annexation of East Portland to Portland, See 1891 Or. Special Laws 796, 898-99; see generally E. MacColl, supra note 20 at 117-26.

179. 6 Or. 62 (1876).

180. Or. Const, art. IV, § 23. For the court's more detailed consideration of the “local highway” ban four years later, See Allen v. Hirsch, 8 Or. 412 (1880), infra notes 252-61 and accompanying text.

181. 6 Or. at 65.

182. Or. Const. art. IX, § 1 reiterated the Article I “equal and uniform” requirement in mirrored form.

183. Cooley, T., A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Powers of the States of the American Union 494, 502 (1868Google Scholar).

184. 6 Or. at 66.

185. Id.

186. 6 Or. 463 (1877).

187. 1865 Or. Laws 26-27.

188. Young, supra note 159, 10 Or. Hist. Q. 263, 292. F. G. Young, who told it like it was, described the “abominations practiced for more than a generation” by taxpayers taking advantage of the indebtedness deduction. Id. at 294. “As property was generally assessed at about one-third of its real value…, it was only necessary for the tax-payer to borrow a sum equal to one-third of his property to escape all taxation.” In some cases, “an exchange of notes between two taxpayers was all that was necessary…” Id. at 292, 294.

189. e.g., Ankeny v. Multnomah County, 3 Or. 386 (1872) (taxpayer's promissory note located outside the state but expressly payable within it held deductible); Ankeny v. Multnomah County, 3 Or. 388 (1872) (similar note which taxpayer merely alleged “was or is payable in Portland” held not deductible); Stephens v. School District No. 1, 6 Or. 353 (1877) (taxpayer's indebtedness anywhere in the state deductible for local school tax purposes).

190. In 1874, the legislature limited deductible debt to $1,000, 1874 Or. Laws 118, and six years later it restricted deductibility to actual rather than contingent debts and to one's proportional share of a joint liability. 1880 Or. Laws 52. For the repeal, see 1893 Or. Laws 6.

191. 6 Or. at 464.

192. Id. at 465.

193. The principal sources for the next few paragraphs are Gilbert, J., Trade and Currency in Early Oregon 95-122 (1907)Google Scholar, and Ellison, , The Currency Question in Oregon During the Civil War Period, 28 Or. Hist. Q. 39 (1927Google Scholar). See also 2 H. Bancroft, supra note 26 at 640-43.

194. J. Gilbert, supra note 193 at 97; see generally id. at 95-98; Ellison, supra note 193 at 39-40.

195. Oregonian, August 8, 1862, at 3, col. 1.

196. Oregonian, January 17, 1863, at 4, col. 2. Federal judge Matthew Deady predicted such reversals in his December 8, 1862 dispatch to the San Francisco Bulletin. The patriotic merchant resolutions were welcome, he wrote, but “alas, human nature is powerful weak, and the experience of the world is that non-intercourse resolutions are oftener than otherwise a mere paper blockade, which each one of the resolvers quickly violates whenever pressed by his own convenience or necessity.” Because he received his federal salary in greenbacks Deady had more than an academic interest in the matter. See also 2 H. Bancroft, supra note 26 at 641.

197. Oregonian, March 2, 1863, at 2, col. 2.

198. See J. Gilbert, supra note 193 at 104-05; 2 H. Bancroft, supra note 26 at 641.

199. Ellison, supra note 193 at 42. But See Bronson v. Rodes, 74 U.S. 229 (1868); Butler v. Horwitz, 74 U.S. 258 (1868).

200. Ellison, supra note 193 at 42; 2 H. Bancroft, supra note 24 at 641.

201. 1845-64 Or. Laws 888-89. For descriptions of the California statute and of Carpenter v. Atherton, 25 Cal. 504 (1864), upholding it, See Bakken, , Law and Legal Tender in California and the West, 62 S. Cal. Q. 239 (1980CrossRefGoogle Scholar). The Nevada court, by contrast, overturned a similar statute on the ground that it conflicted with the federal legal tender acts. Milliken v. Sloat, 1 Nev. 573 (1865). For decisions interpreting the Oregon statute, see Davis v. Mason, 3 Or. 154 (1869); Wills v. Wilson, 3 Or. 308 (1871).

202. Bloom v. Stephens, (Mult. Co. Cir. Ct.), Oregonian, Dec. 9, 1864, at 2, col. 1.

203. 1855 Or. Laws 438, 441.

204. Oregon Statesman, March 30, 1863.

205. Ellison, supra note 193 at 45.

206. 1845-64 Or. Laws 915; see also 1865 Or. Laws 8.

207. 2 Or. 128 (1865).

208. The era of Civil War and Reconstruction was “a major episode in the development of nineteenth century Western nationalism.” M. Keller, Affairs of State, supra note 18 at 4. Building on the foundation laid nearly a century before, it contributed in countless ways to “the ideal of a powerful, unified, purposeful nation.” Id. See generally id. at 1-283; Randall, J. & Donald, D., The Civil War and Reconstruction 535-43 (1961)Google Scholar; Kutler, S., Judicial Power and Reconstruction Politics (1968)CrossRefGoogle Scholar.

209. 2 Or. at 135.

210. Id. at 136 (quoting The Federalist No. 33 [A. Hamilton]) (emphasis by the court). The court also invoked the Tenth Amendment: “Again, the power over State taxes is nowhere expressly given to Congress, nor is it expressly prohibited to the States, consequently section ten of the amendments yields that power to the States.” 2 Or. at 137 (emphasis by the court).

211. Id.

212. 2 Or. at 138.

213. Id. at 139. The court's description of a tax continued, “There is none of the mutuality which enters into a contract, and none of the legal incidents of a debt; [they] are not subject to attachment, are not off-sets, bear no interest, and need no solemn acts of courts to enforce them.” Id.

214. See 12 Stat. 345 (1862); Perry v. Washburn, 20 Cal. 318 (1862) (Field, J.). Cf. Field's views on the legal tender acts generally, set forth in Hepburn v. Griswold, 75 U.S. 603 (1869), and Legal Tender Cases, 79 U.S. 457, 634-81 (1871).

The third and least interesting issue in Whiteaker was whether Oregon law actually required payment of the disputed taxes in gold. Weaving through a maze of statutes and repealers, the court concluded that it did.

215. Lane County v. Oregon, 74 U.S. (7 Wall.) 71 (1868).

216. Id. at 76, 78.

217. 3 Or. 568 (1870); See supra text at notes 97-100.

218. The Democrats in 1868 hoped to use their regained control of the legislature to 1) rescind Oregon's ratification of the Fourteenth Amendment; 2) redistrict the state to their advantage; and 3) recount the 1866 gubernatorial vote in order to “count Woods out and place Kelly in the governor's office.” 2 H. Bancroft, supra note 26 at 669; See also Johansen, , The Oregon Legislature of 1868 and the Fourteenth Amendment, 51 Or. Hist. Q. 1 (1950Google Scholar); Young, supra note 159, 12 Or. Hist. Q. 87, 97-98. Part of their strategy was to prolong the session by deferring passage of an appropriations bill. On the forty-third day, however, three days past the constitutional limit, fifteen Republican legislators resigned leaving the House without a quorum.

219. Young, supra note 159, 12 Or. Hist. Q. at 102. The commission also discovered a series of embezzlements by Secretary May. 2 H. Bancroft, supra note 26 at 659; Young, supra at 102. The state prosecuted May three times unsuccessfully, but did eventually recover the missing $14,000 from his two sureties Applegate, Jesse and Dowell, B. F.. Or. Sec. of State, Biennial Report to the Legis. Assem. of 1870-72, at 18 (1872Google Scholar). The lengthy litigation was a heavy blow to aging pioneer Applegate. See, e.g., Dowell v. Applegate, 7 Saw. 232 (D. Or. 1881); 8 Saw. 427 (D. Or. 1883); Baker, , Experience, Personality and Memory: Jesse Applegate and John Minto Recall Pioneer Days, 81 Or. Hist. Q. 248 (1980Google Scholar).

220. The commission's reason for disallowing Brown's five warrants cannot be definitely determined, but the Oregonian charged in mid-1871 that Brown occasionally took state warrants in payment for transmitting private telegrams. Oregonian, Aug. 8, 1871, at 2, col. 1.

221. Oregonian, March 6, 1871, at 2, col. 1.

222. 4 Or. 132 (1871).

223. 1845-64 Or. Laws 622 (emphasis added).

224. 4 Or. at 136.

225. Id. at 147 (emphasis in original).

226. Id. at 145-47.

227. In Shattuck v. Kincaid, 31 Or. 379 (1897), following the failure of the 1896 legislature even to organize, the court adopted Upton's reasoning almost verbatim to overrule Brown. See also Simon v. Brown, 5 Or. 285 (1874); Young, supra note 159 at 278-79.

228. See supra note 156 and accompanying text; Burrell, O., Gold in the Woodpile: An Informal History of Banking in Oregon 103 (1967Google Scholar); B. Hammond, supra note 152 at 605-630; Rockoff, H., The Free Banking Era: A Re-Examination 1-33 (1975).Google Scholar

229. See supra notes 152-55 and accompanying text.

230. To some, banks were “the worst of corporations, the most aggressive and the most vicious…. They corrupted legislation; they ruined private morals.” B. Hammond, supra note 152 at 608.

231. Most eloquent among them was convention president Matthew Deady:

We have an agricultural community, and the domestic virtues incident to an agricultural people; and there is where you look for the true and solid wealth and happiness of a people…. In manufacturing countries power, political and otherwise, is in the hands of capitalists; there are many people dependent on them, and dependence begets servility…. I am not in favor of encouraging a fungous growth of improvement in this country.

C. Carey, supra note 4 at 249.

232. O. Burrell, supra note 228 at 103.

233. Or. Const. art. XI, § 1.

234. O. Burrell, supra note 228 at 105; See generally 1 R. Clark, supra note 8 at 745-89 (history of Oregon banking by James Gilbert). On express companies serving as banks in pioneer Oregon, see Jackson, , Portland: Wells Fargo's Hub for the Pacific Northwest, 86 Or. Hist. Q. 229 (1985Google Scholar).

235. For a brief announcement of the new bank, See Oregonian, Nov. 18, 1879, at 3, col. 1.

236. 8 Or. 396 (1880).

237. Id. at 399-400.

238. Id. at 400.

239. Id.

240. Id. at 402.

241. Id. at 401. Deady described Kelly's visit in his diary:

Judge Kelly called on me at my chambers and consulted me about the construction of the first sec of the Constitution Art 11 in relation to corporations. I had the original report of the Committee, the amendments and engrossed bill as it passed the convention from which it [appears] that the semicolon after the word “whatever” is a typographical error, and the prohibition in the section only extends to establishing or permitting to exist banks or institutions with power to issue paper to circulate as money. I let him have the documents and he seemed to think they would settle the question in the supreme court in favor of the power of the State to incorporate any other kind of a Bank—as a savings bank, and I hope it may as I know that it ought.

1 Pharisee, supra note 9 at 300. Convention records available today are inconclusive, but on balance seem to support this conclusion. See C. Carey, supra note 4 at 147, 230, 274, 277. Governor Oswald West (1911-15), however, later characterized the court's decision as “good economics but not good law” and, more pithily, “a lot of bunk.” O. Burrell, supra note 228 at 105.

242. See generally L. Friedman, supra note 39 at 177-201; Horwitz, M., The Transformation of American Law 63-139 (1977)Google Scholar; Scheiber, H., Ohio Canal Era: A Case Study of Government and the Economy, 1820-1861 (1969)Google Scholar; Handlin, O. & Handlin, M., Commonwealth: A Study of the Role of Government in the American Economy, Massachusetts, 1774-1861 (1969)Google Scholar; Hurst, W., Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin (1964)Google Scholar; Goodrich, C., Government Promotion of American Canals and Railroads, 1800-1890 (1960)Google Scholar; Hartz, L., Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (1948).CrossRefGoogle Scholar

The most sustained and thoughtful work in this area has been by Harry Scheiber. E.g., Scheiber, , Public Economic Policy and the American Legal System: Historical Perspectives, 1980 Wis. L. Rev. 1159Google Scholar; Scheiber, , Federalism and the American Economic Order, 1789-1910, 10 Law & Soc. Rev. 57 (1975CrossRefGoogle Scholar); Scheiber, , The Road to Munn: Eminent Domain and the Concept of Public Purpose in the State Courts, 5 Perspectives in Am. Hist. 329 (1971Google Scholar).

243. Hurst, J., Law and the Conditions of Freedom in the Nineteenth-Century United States 6 (1956Google Scholar); See generally id. at 3-32; Scheiber, The Road to Munn, supra note 242 at 331-33.

244. New York's 365-mile Erie Canal, for example, built between 1817 and 1825 for $7,000,000, was the “most decisive single event in the history of American transportation.” C. Goodrich, supra note 242 at 55. For other descriptions of publicly funded improvements, See H. Scheiber, Ohio Canal Era, supra note 242 at 25, 30; O. Handlin & M. Handlin, supra note 242 at 255-60; L. Hartz, supra note 242 at 129-80; Scheiber, Public Economic Policy, supra note 242 at 1161-65.

245. Public assistance to private enterprise has been an important but unpublicized phenomenon in American history. It is the subject of a later article in this series, Mooney and Moser, Government and Enterprise in Early Oregon (forthcoming). Meanwhile, see generally the authorities cited supra note 242; infra note 262.

246. See supra note 160 and accompanying text.

247. Or. Const. art. XI, §§ 6, 7; see supra note 160. In 1866, the legislature agreed to pay interest on Oregon Central Railroad bonds, but two years later rescinded that agreement as unconstitutional. 1866 Or. Laws 1-5; 1868 Or. Laws 44-45; Young, supra note 159, 11 Or. Hist. Q. 403, 414. Then in 1868, it undertook its most ambitious support of a private improvement by pledging to pay Willamette Falls Canal and Lock Company $150,000 upon completion of a canal and locks around the Oregon City falls. 1868 Or. Laws 46-49. Supporters denied a violation of Article XI, noting that the funds came initially from federal internal-improvement grants. See generally Young, supra, 11 Or. Hist. Q. 403, 414-16.

248. Barzee, C., Oregon in the Making 92-93 (1936)Google Scholar; see also Winther, O., The Old Oregon Country 122-34 (1949)Google Scholar; Winther, , The Place of Transportation in the Early History of the Pacific Northwest, 11 Pac. Hist. Rev. 383 (1942Google Scholar); Jonasson, , Local Road Legislation in Early Oregon, 42 Or. Hist. Q. 162, 173–74 (1941Google Scholar).

249. Between 1864 and 1872, the federal government financed construction of five military wagon roads in Oregon. See generally O'Callaghan, J., The Disposition of the Public Domain in Oregon 49-59 (1960)Google Scholar; Amundson, C., History of the Williamette Valley and Cascade Mountain Wagon Road Company (1942) (M.A. thesis, Univ. of OregonGoogle Scholar); Bruce, H., A History of the Oregon Central Military Wagon Road Company, with Reference to the Histories of Four Other Land Grant Companies in the State of Oregon (1936) (M.A. thesis, Univ. of OregonGoogle Scholar); Jackson, , Federal Road Building Grants For Early Oregon, 50 Or. Hist. Q. 3 (1949Google Scholar).

250. 1860 Or. Laws 33-43. Males aged 21-50 could be assessed two days road duty each year plus one additional day for every $2,000 worth of property owned in the county; a person assessed could pay $2 per day in lieu of working. Id. at 38-39. For the supervisor's acquisition authority, see id. at 40-41.

251. 1860 Or. Laws 33-36. For territorial and provisional-government antecedents of this system, see 1859 Or. Laws 11-25; 1853 Or. Laws 447-57; 1851 Or. Laws 238-44; 1843-49 Or. Laws 17-22, 88-91; Jonasson, supra note 248; Winther, , The Development of Transportation in Oregon, 1843-49, 40 Or. Hist. Q. 315 (1939Google Scholar).

252. Or. Const. art. IV, § 23; See supra note 180 and accompanying text.

253. In 1860, Congress extended to Oregon an earlier grant to Mississippi River states of “swamp and overflow” land within their borders unfit for cultivation. 12 Stat. 3 (1860). States were to use proceeds from the sale of such land “as far as necessary” for reclamation. 9 Stat. 519 (1850). Oregon took no steps to claim any such land until 1870, but thereafter found various worthy (and a few unworthy) uses for the sale proceeds. See generally J. O'Callaghan, supra note 249 at 67-69; Young, supra note 159, 10 Or. Hist. Q. 366, 378-84; id., 11 Or. Hist. Q. 121, 154-59; 2 H. Bancroft, supra note 26 at 654-58; Victor, , Our Public Land System and its Relation to Education in the United States, 1 Or. Hist. Q. 132, 155–56 (1900Google Scholar).

254. Upon Oregon's admission to the Union, Congress donated to it five percent of the proceeds from future sales of public land within its borders, to be used for “constructing, improving, and maintaining public roads and other internal improvements.” 11 Stat. 383, 384 (1859). The state used the money for only one such improvement, the Oregon City canal and locks, the remainder being pilfered or eventually transferred to the common-school fund. See supra note 247; 2 H. Bancroft, supra note 26 at 659; Young, supra note 159, 12 Or. Hist. Q. 87, 108-10.

255. 1872 Or. Laws 56-62, 81-86.

256. 8 Or. 412 (1880).

257. 8 Or. at 425. In People v. Allen, 42 N.Y. 378 (1870), the New York court held an appropriation to improve the Bouquet River, “a small stream emptying into Lake Champlain,” a local act. In dictum, however, it advised that one to improve the Hudson River would be “general” because the Hudson was the “connecting link in the chain of water communication between the ocean and the inland lakes.” 8 Or. at 424, paraphrasing 42 N.Y. at 381-83.

258. 8 Or. at 426.

259. Id. at 425-26.

260. Id. at 426-27. In the end, the plaintiff lost on two of his three warrants by failing to allege that on the day the treasurer refused to pay them there existed sufficient money in the treasury “applicable to such payments.” 8 Or. at 427.

261. Id. at 428.

262. See generally authorities cited supra note 242; See also Levy, L., The Law of the Commonwealth and Chief Justice Shaw 118-39, 307 (1957Google Scholar); Freyer, , Reassessing the Impact of Eminent Domain in Early American Economic Development, 1981 Wis. L. Rev. 1263Google Scholar; Scheiber, , Property Law, Expropriation, and Resource Allocation by Government, 1789-1910, 33 J. Econ. Hist. 232 (1973Google Scholar); Sax, , Takings, Private Property and Public Rights, 81 Yale L. J. 149 (1971CrossRefGoogle Scholar).

263. E.g., Scheiber, Property Law, supra note 262 at 234-37; Scheiber, The Road to Munn, supra note 242 at 360-62; Nichols, , The Meaning of Public Use in the Law of Eminent Domain, 20 B.U. L. Rev. 615 (1940Google Scholar). An important corollary of the “public use” requirement for eminent domain was the “public purpose” requirement for taxation. For an excellent treatment, see C. Jacobs, supra note 160 at 98-159.

264. Scheiber, Property Law, supra note 262 at 234-40; Scheiber, The Road to Munn, supra note 242 at 362-76; M. Horwitz, supra note 242 at 63-74, 259-61. See generally J. Hurst, supra note 243 at 5-11 (“We were a people going places in a hurry…. We did not devote the prime energies of our legal growth to protecting those who sought the law's shelter simply for what they had; our enthusiasm ran rather to those who wanted the law's help positively to bring things about.” Id. at 9-10).

265. Scheiber, The Road to Munn, supra note 242 at 371-73, 385-98 (describing mainly post-Civil War developments).

266. M. Horwitz, supra note 242 at 259; see also Graham, H., Everyman's Constitution 260-62 (1968)Google Scholar (describing an anonymous article, The Security of Private Property, 1 Am. L. Mag. 318 [1843]Google Scholar, urging strenuously that eminent domain be restrained within its traditional bounds to “cases of urgent state necessity, or obvious public utility”).

267. Scheiber, Property Law, supra note 262 at 240-41. Neither group of critics received help at that time from the Supreme Court. See, e.g., Mills v. St. Clair County, 49 U.S. (8 How.) 569 (1850); West River Bridge v. Dix, 47 U.S. (6 How.) 507 (1848).

268. In the West “the hardships of life in arid lands and mountain fastnesses, the nature of the resource base, vast distances, and, above all, men's impatience to force the pace of economic development, all Seemed to overwhelm the remaining bulwarks of legal-constitutional structure.” Scheiber, Property Law, supra note 262 at 244. For more on the western experience, see Scheiber, & McCurdy, , Eminent Domain Law and Western Agriculture, 1849-1900, 49 Agric. Hist. 112 (1975Google Scholar).

269. The 1875 Missouri constitution, for example, provided that public use “shall be a judicial question…. without regard to any legislative assertion that the use is public.” Mo. Const. Art. II, § 20 (1875Google Scholar); see also Mills, H., A Treatise on the Law of Eminent Domain 13 (1879Google Scholar). As early as the 1850's constitutions of states like Ohio, Iowa, and Kansas required corporations to prepay eminent-domain compensation measured without regard to possible offsetting benefits. Scheiber, Property Law, supra note 262 at 241-42; McCormick, , The Measure of Compensation in Eminent Domain, 17 Minn. L. Rev. 461, 492–93 (1933Google Scholar).

270. Pumpelly v. Green Bay Co., 80 U.S. (13 Wall.) 166 (1871), discussed in Scheiber, The Road to Munn, supra note 242 at 383-84.

271. Lewis, J., A Treatise on the Law of Eminent Domain in the United States i, 224 (1888Google Scholar); see also T. Cooley, supra note 183 at 532-36; C. Jacobs, supra note 160 at 166.

272. Or. Const. art. I, § 18.

273. E.g., Wilkinson v. Leland, 27 U.S. (2 Pet.) 657 (1829) (Story, J.); Witham v. Osburn, 4 Or. 318, 322 (1873); Consolidated Channel Co. v. Central Pac. R.R., 51 Cal. 269 (1876); J. Lewis, supra note 271 at 214-15; H. Mills, supra note 269 at 24; cf. Harvey v. Thomas, 10 Watts 63 (Pa. 1840). For the remarkable argument by railroad attorneys that such language permitted uncompensated private takings, see Beekman v. Saratoga & Schenectady R.R., 3 Paige 45, 57-58 (N.Y. 1831) (argument of counsel), noted in M. Horwitz, supra note 242 at 290.

274. On roadbuilding, see supra notes 250-51; on swamplands and public-easement roads, see infra notes 281-91 and accompanying text; on enterprise takings, see 1862 Or. Laws 8-15; 1870 Or. Laws 26-27; 1878 Or. Laws 95-96, 104-09.

275. 2 Or. 34 (1861).

276. Id. at 35-36. For the twenty-day rule, see 1855 Or. Laws 321.

277. 2 Or. at 36.

278. Id.; see also Niblo v. Post's Administrators, 25 Wend. 280 (N.Y. 1840); People ex rel. Agnew v. Mayor of New York, 2 Hill 9 (N.Y. 1841). For the two-year writ of error limitation, see 1854 Or. Laws 120.

279. Id. at 37; see also Rice v. Parkman, 16 Mass. 326 (1820); Commonwealth v. West Boston Bridge, 30 Mass. 195 (1832); Ryers v. Hedges, 1 Hill 646 (N.Y. 1841).

280. Id. at 38. Or. Const. art. VII, § 9 also supported the court's conclusion, granting circuit courts “supervisory control” over county courts. The new code of civil procedure adopted a year later replaced certiorari with a writ of review. 1862 Or. Laws 146; see also supra note 125; Peters, supra note 60.

281. 4 Or. 25 (1870).

282. 1868 Or. Laws 21-22.

283. 4 Or. at 29.

284. Id. at 29-30. For reviews of mostly similar decisions elsewhere, see J. Lewis, supra note 271 at 264-65; H. Mills, supra note 269 at 19-20; T. Cooley, supra note 183 at 533.

285. Id. at 29-30. Section 8 of the act provided: “No person shall be allowed to tap or bring water into a ditch already dug, without paying a reasonable compensation therefor.” 1868 Or. Laws 22.

286. 1860 Or. Laws 37.

287. 4 Or. 318 (1873).

288. Id. at 319-20.

289. Compare Taylor v. Porter, 4 Hill 140 (N.Y. 1843), with Harvey v. Thomas, 10 Watts 63 (Pa. 1840); Snyder v. Warford, 11 Mo. 513 (1848); In re Hickman, 4 Del. 580 (1847); 2 Hilliard, F., The American Law of Real Property 21-23 (3d ed. 1855)Google Scholar.

290. 4 Or. at 323 (disagreeing with Sherman v. Buick, 32 Cal. 242 (1867)).

291. 4 Or. at 324. The legislature obliged three years later with an act to create “roads of public easement.” 1876 Or. Laws 25-26.

292. 6 Or. 238 (1877).

293. Id. at 240. Kamer's “double jeopardy” contention may have been more compelling than the court acknowledged. Viewers appointed under the first petition had assessed his damage at $500, and apparently then he had not opposed the road. The county court declined to act, however, until it received another petition months later. Then, over Kamer's objection, it denied the first petition, appointed new viewers, and the following month granted the second petition. Id. at 238-39. The opinion does not reveal the second damage assessment, but the inference is irresistible.

294. 6 Or. at 240.

295. 8 Or. 141 (1879).

296. 8 Or. at 144-45.

297. Id. at 145. This strikingly instrumental language is reminiscent of opinions by eastern courts during comparable periods of economic development. See, e.g., M. Horwitz, supra note 242 at 1-30, 75 (quoting Lexington & Ohio R.R. v. Applegate, 8 Dana 289, 309 (Ky. 1839): “The onward spirit of the age must, to a reasonable extent, have its way.”); see also infra text accompanying note 330.

298. Or. Const. art. I, § 17 provided: “In all civil cases the right of Trial by Jury shall remain inviolate.”

299. 8 Or. at 146; see also 2 J. Dillon, supra note 112 at 585-86; C. Jacobs, supra note 160 at 111-14, 160-67.

300. 9 Or. 470 (1881).

301. Id. at 472.

302. Id. at 474. The court distinguished Grigsby v. Burtnell, 31 Cal. 406 (1866), enjoining road construction of a road through a landowner's yard.

303. 5 Or. 362 (1874).

304. 1865 Or. Special Laws 132-37.

305. 5 Or. at 365-66. Apparently the freeholders reached similar conclusions about other properties as well. In what the court termed a “remarkable coincidence,” the $6,000 total benefits they assessed offset exactly their $6,000 total damage estimate. 5 Or. at 368. Such “coincidental” valuations were common elsewhere as well. In Ohio, for example, railroads condemning land often used their political influence to assure appointment of “friendly appraisers” who routinely inflated benefit assessments to offset all alleged damage. H. Scheiber, Ohio Canal Era, supra note 242 at 277-78; see generally Comment, Eminent Domain: Set-Off of Benefits Against Damages to Remaining Land Denied, 43 Iowa L. Rev. 303 (1958Google Scholar).

306. Id. at 363. The statute directed that the city act as plaintiff on appeal. 1865 Or. Special Laws 136.

307. 62 Or. Laws 138.

308. 5 Or. at 366.

309. Id. at 367.

310. In dictum, the court also noted a circuit court error in permitting a Portland taxpayer to serve on the jury. Nine years earlier, in Garrison v. City of Portland, 2 Or. 123 (1865), it had disqualified a city taxpayer from jury duty in a tort action. Even though potential city liability in a street-assessment action was negligible by comparison, the authorities were “numerous and uniform to the effect that an interest in the event of the suit, though small and remote, disqualifies the juror”:

It is certainly a great safeguard and protection to our boasted right of trial by jury, in both criminal and civil cases, that jurors should be secured, as free as it is possible in the nature of things for them to be, from both actual or implied bias in the event of the suit, as well as in relation to the parties litigant.

5 Or. at 368-69.

311. 6 Or. 328 (1877).

312. Id. at 330.

313. Id. at 328. For the statute embodying the “how much less valuable” standard, see 1860 Or. Laws 35.

314. See supra text at note 272.

315. The valuation measure Putnam sought was required by statute in enterprise eminent domain cases. Or. Const. art. XI, § 4 provided that “no person's property shall be taken by any corporation… without compensation being first made or secured.” The 1862 general incorporation law made that directive more specific by requiring such compensation be paid “irrespective of any increased value… by reason of the proposed improvement by such corporation.” 1862 Or. Laws 9.

In Oregon Central R.R. Co. v. Wait, 3 Or. 428 (1869), the court described the enterprise compensation requirement in this way:

[T]he damages are to consist of the value of the land appropriated, irrespective of any additional value to it, etc., and then, if such appropriation injures the other land of that owner, over and above the benefits or additional value of those lands,… an additional amount is to be awarded sufficient to cover such excess of injury over benefit, etc. Id. at 433. See also Oregon Railway Co. v. Hill, 9 Or. 377 (1881); Oregon & California Railway Co. v. Barlow, 3 Or. 311 (1871).

316. 6 Or. at 331; see also McIntire v. State, 5 Blackf. 384 (Ind. 1840); Hornstein v. Atlantic & Great W. R.R. Co., 51 Pa. 87 (1865); Commonwealth v. Coombs, 2 Mass. 489 (1807); J. Lewis, supra note 271, at 587-607.

317. 6 Or. at 332.

318. Id. at 332-33 (citing Sedgwick, T., A Treatise on the Measure of Damages 718 (6th ed. 1874Google Scholar)).

319. 6 Or. at 333.

320. 7 Or. 397 (1879).

321. A preliminary issue in Lee Sam was whether the jury's verdict of $2,500 “over and above all benefits” was inadequate for failure to state separately landowner damage and benefit. See City of Portland v. Kamm, supra notes 306-10 and accompanying text. The court found the form of verdict acceptable, however, believing “irresistible” the inference that “there were no benefits to be determined by the jury.” 7 Or. at 402-03.

322. 7 Or. at 399.

323. Id. at 401.

324. Id.; see In re Widening Wall Street, 17 Barb. 617 (N.Y. 1854).

325. 7 Or. at 398. It is notable that this pro-landowner valuation decision favored Chinese owners of property on Second Street, then the heart of Portland's Chinatown. For a study indicating that the court treated Chinese litigants less well after 1880, See Wunder, , The Chinese and the Courts in the Pacific Northwest: Justice Denied?, 52 Pac. Hist. Rev. 191 (1983CrossRefGoogle Scholar); see generally Mooney, supra note 87.

326. The three major categories of decisions just described hardly exhaust the early Oregon court's work in the area of government operations. A long series of decisions, for example, reviewed the functioning of county courts, a legislative/judicial hybrid new to Oregon at statehood. (See Or. Const. art. VII, §§ 1, 11, 12, 13. For convention debates about their novelty, expense, and accountability, see C. Carey, supra note 4 at 199-202, 210-11.) The hybrid nature of such courts raised early uncertainties about their jurisdiction and powers. E.g., Thompson v. Multnomah County, 2 Or. 34 (1861) (county court action laying out county road, being judicial rather than ministerial, reviewable by writ of certiorari); Johns v. Marion County, 4 Or. 46 (1870) (county court one of limited jurisdiction, so without power even to consider defective road building petition); Tustin v. Gaunt, 4 Or. 305 (1873) (county court one of general jurisdiction in probate matters, so entitled there to presumptions of regularity); Springfield Milling Co. v. Lane County, 5 Or. 265 (1874) (county not liable for lumber purchased by court-appointed bridge superintendent in violation of statutory bidding requirements); Mountain v. Multnomah County, 8 Or. 470 (1880) (county court decision transacting county business reviewable by writ of review, but not by appeal); Clark v. Ellis, 9 Or. 128 (1881) (county court has jurisdiction to hear will contest); Crossen v. Wasco County, 10 Or. 111 (1882) (county court decision denying sheriff's claim for fees not “judicial” in nature so may be challenged collaterally); Wright v. Edwards, 10 Or. 298 (1882) (county court's authority to sell intestate's real property entirely statutory, so petition invoking it must set forth all required jurisdictional facts). See generally R. Ireland, The County Courts of Antebellum Kentucky (1972); Hartog, , The Public Law of a County Court: Judicial Government in Eighteenth Century Massachusetts, 20 Am. J. Leg. Hist. 282 (1976CrossRefGoogle Scholar).

A similar though shorter series of decisions related to justices of the peace: Thompson v. Wolfe, 6 Or. 308 (1877) (JPs had exclusive jurisdiction over forcible entry and detainer actions); Griffin v. Pittman, 8 Or. 342 (1880) (JP rendering judgment had no authority to set it aside); Gaunt v. Perkins, 8 Or. 354 (1880) (JP default judgment reversed for failure to advise defendant of specific hour to appear). For a thorough treatment of justices of the peace in the early Northwest, See J. Wunder, supra note 48.

A third series of decisions raised various municipal corporation issues. E.g., Strowbridge v. City of Portland, 8 Or. 66 (1879) (city council may lay out sewers without declaring necessity by ordinance); Baker v. City of Portland, 8 Or. 356 (1880) (state statute prohibiting employment of Chinese on public works unenforcible by injunction because plaintiff city failed to demonstrate likelihood of irreparable injury); Price v. Knott, 8 Or. 438 (1880) (city has charter power to facilitate travel and commerce by grading streets adjacent to river).

Finally, there were a few sheriff cases. E.g., Griswold v. Stoughton, 2 Or. 61 (1863); Richards v. Nye, 5 Or. 382 (1875); Roy v. Horsley, 6 Or. 270 (1877); Remdall v. Swackhamer, 8 Or. 502 (1880); Lane v. Coos County, 10 Or. 123 (1882).

327. L. Levy, supra note 262 at 3.

328. See McCurdy, , Stephen J. Field and Public Land Law Development in California, 1850-1866: A Case Study of Judicial Resource Allocation in Nineteenth-Century America, 10 Law & Soc. Rev. 235 (1976CrossRefGoogle Scholar).

329. See generally works cited supra note 48.

330. For a useful summary of the relevant historiography, see Bakken, G., The Development of Law on the Rocky Mountain Frontier 10-17 (1983).Google Scholar Early historians of the frontier hypothesized that local attitudes and conditions strongly influenced the development of western law. E.g., Turner, F., The Frontier in American History (1920)Google Scholar; Paxson, F., History of the American Frontier (1924).Google Scholar The first serious students of the question, however, William Wirt Blume and Elizabeth Gaspar Brown, demonstrated that at least in frontier Michigan the “reception” of eastern law was widespread and systematic. E.g., Blume, , Civil Procedure on the American Frontier, 56 Mich. L. Rev. 161 (1957Google Scholar); Blume & Brown, Territorial Courts and Law, 61 Mich. L. Rev. 39, 467 (1962-1963CrossRefGoogle Scholar). Later students generally have confirmed that view, except occasionally in areas of law necessarily influenced by local conditions, like water law. E.g., J. Guice, supra note 48; G. Bakken, supra; Langum, Introduction to Symposium on Law in The West, J. of the West (Jan. 1985). Cf. L. Friedman, supra note 39 at 363-70. In fact, it Seems, common law rules and procedures largely prevailed even on the overland trail. Reid, J., Law for the Elephant: Property and Social Behavior on the Overland Trail (1980).Google Scholar

331. See, e.g., Horwitz, , The Emergence of an Instrumental Conception of American Law, 1780-1820, 5 Perspec. Am. Hist. 285 (1971Google Scholar) (between 1780 and 1820 the structure of American legal thought underwent a profound transformation, from a conception of law as an “eternal set of principles” to one emphasizing the possibility of judicial choice and the common law as an instrument of conscious policy making); Nelson, , The Impact of the Antislavery Movement upon Styles of Judicial Reasoning in Nineteenth Century America, 87 Harv. L. Rev. 513, 514–15 (1974CrossRefGoogle Scholar) (instrumentalism “went into decline” in the late nineteenth century, replaced by a new formalism in which judges saw their role less as promotion of particular policy choices and more as “preservation of the logical structure of the rules and fundamental principles of the law”); Scheiber, , Instrumentalism and Property Rights: A Reconsideration of American “Styles of Judicial Reasoning” in the 19th Century, 1975 Wis. L. Rev. 1Google Scholar (even as the century ended, many state courts, particularly in western property, eminent domain, and resource-allocation cases, “continued to adhere to the instrumental style of reasoning in adjudicating major issues of public policy”). See also Llewellyn, K., The Common Law Tradition: Deciding Appeals 35-40, 64-74, 186-89 (1960)Google Scholar; Horwitz, , The Rise of Legal Formalism, 19 Am. J. Leg. Hist. 251 (1975CrossRefGoogle Scholar); Paine, , Instrumentalism v. Formalism: Dissolving the Dichotemy, 1978 Wis. L. Rev. 997.Google Scholar