The Quarterly of the Oregon Historical Society Part 16

The other act was one which declared to be adopted, and in force, certain acts of the revised statutes of Iowa Territory published in 1843. The legislative a.s.sembly of Oregon by a single act adopted these acts of Iowa, designating them by their several t.i.tles, and the dates of their pa.s.sage. This law was generally known as the "Chapman Code,"

owing to the fact that the bill was introduced by and its pa.s.sage secured through the influence of Hon. W. W. Chapman, then a member of the legislative a.s.sembly.

Soon after these two acts were pa.s.sed, their validity was questioned, especially that of the one which located the public buildings, and transferred the seat of government from Oregon City to Salem. Those who denied their validity did so on the ground that they contravened that clause of the organic act of August 14, 1848, section 6, which provides that "To avoid improper influences which may result from intermixing in one act such things as have no proper relation to each other; every act shall embrace but one object, and that shall be expressed in the t.i.tle."

Legal proceedings were soon taken by persons interested in retaining the capital at Oregon City to declare the act of removal invalid. A suit brought for that purpose came on for hearing before the supreme court at Oregon City, in December, 1851. By law the judges of the district courts composed the supreme court of the territory. They were Thomas Nelson, Chief Justice, O. C. Pratt, and William Strong. Of these Nelson and Strong had been appointed by Presidents Fillmore and Taylor, respectively, while Pratt was holding over under an appointment of President Polk. The former were Whigs politically, while the latter was a Democrat. Judges Nelson and Strong convened at Oregon City, and opened the supreme court there. Judge Pratt went to Salem under the act which changed the seat of government, but without a quorum could not hold a session of the court. Judges Nelson and Strong then decided that the act of the legislative a.s.sembly providing for the selection of places for the location and erection of the public buildings, pa.s.sed February 1, 1851, was void, because it contravened the organic law of August 14, 1848, as before stated. The opinions of the judges were never published in the Oregon Reports, for what reason I do not know. Possibly they were not filed with the supreme court. Judge Pratt claimed that this decision amounted to nothing because it was not made at the seat of government, as established by act of the legislative a.s.sembly, and in this opinion that body then a.s.sembled at Salem, readily concurred. This heated controversy about the location of the capital was, however, settled by a joint resolution of Congress, adopted May 4, 1852 (10 U. S.

Statutes, 146). The first section legalized the act of the territorial legislature which located the public buildings, and the second section declared that the late session of the legislative a.s.sembly was held in conformity with the provisions of law. This, of course, ended all dispute about the location of the capital, but unhappily another controversy grew out of the construction placed by Judges Nelson and Strong upon the sixth section of the organic law of August 14, 1848.

For the same reasons which they held the act for the location of the public buildings void, they also held the act of the legislative a.s.sembly, which adopted the revised statutes of Iowa, to be also invalid. In other words, these judges held that by adopting several distinct statutes of Iowa in one act, it necessarily embraced more than one object. Judge Pratt took a different view and held that the act of the legislative a.s.sembly embraced but one object, to wit, the adoption of a code of laws of the territory.

The result of these conflicting views of the judges was that in Judge Nelson's judicial district, composed of Clackamas, Marion, and Linn counties, and in Judge Strong's district, composed of Clatsop County and the counties north of the Columbia River, the Iowa Code of 1838, adopted by the Provisional Government, was held to be in force. Judge Pratt's district, composed of all the territory west of the Willamette River, included the counties of Washington, Yamhill, Polk, and Benton, and in this district the "Chapman Code" of the Revised Code of Iowa Statutes of 1843, was recognized as the law in force. In the district of Nelson and Strong, the lawyers would cite the law from the "Little Blue Book," as the volume of Statutes of Iowa of 1838 was called. In Judge Pratt's district the same lawyers would quote from the "Big Blue Book," as the Iowa Code of 1843 was called. There were but three or four copies of the _little blue book_ in the territory, one of which was owned by Hon. A. E. Wait. The last time I saw it it was in the possession of Hon. Benton Killin. There were only two copies of the _big blue book_ in Oregon and the statutes adopted by the Chapman Code were not published until the latter part of 1853, when they were printed by the territorial printer and bound in paper covers. A number of these printed copies were distributed among the several counties in the territory, but the uncertainty and doubt as to their validity made them of little value.

As I said before, Judge Pratt's views of this legal controversy coincided with those of the legislative a.s.sembly, then in session at Salem, and that body pa.s.sed an act detaching the counties of Marion and Linn from the judicial district of Judge Nelson, leaving him only Clackamas County, in which he resided. In this act it was provided that the terms of court in Marion and Linn counties should commence one week earlier than they did under the old law. So Judge Pratt held court at Salem and Albany under the new law, and a week later in each county Judge Nelson went to Salem and Albany to hold the district court under the old law. He found, however, that Judge Pratt had preceded him, held the courts, and adjourned for the term. Judge Nelson finding that no business was prepared for hearing before him by the lawyers, and no jury summoned to try cases, returned somewhat disgusted to Oregon City, and was soon after relieved by the appointment of Hon. George H. Williams, as chief justice of the territory. He went back to his home in New York, where I believe he still lives [1894.]

I have referred to this almost forgotten history of the early days of the territorial government of Oregon to show the necessity that existed for a revision of the statutory laws of the territory. The uncertainty as to what laws were then in force, and the desire to be relieved from this condition of affairs was the princ.i.p.al reason which induced the legislative a.s.sembly to pa.s.s the act of January, 1853, providing for the election by that body of three commissioners to prepare a draft for a code of laws, to be submitted to the next legislature. In pursuance of this act, the legislative a.s.sembly elected the following commissioners in the order named: James K.

Kelly, of Clackamas County, Reuben P. Boise, of Polk County, and Daniel R. Bigelow, of Thurston County.

Being first elected, I acted as chairman of the board, and notified the other commissioners of the time of our first meeting, which took place some time in March, 1853. We met in the council chamber of the legislative building, where all our subsequent meetings were held.

The first two or three days were occupied in discussing the general outline of our duties and the kind of code to be prepared. By common consent we agreed to accept the New York code of practice as the basis of our own, but with a notable exception in regard to proceedings in equity. Mr. Bigelow strongly insisted upon having no separate court of equity or of equity proceedings, but urged that we should follow the example of California in this respect. Mr. Boise and I differed from Mr. Bigelow. We contended that in the organic act of August 14, 1848, a separate system of equity proceedings was contemplated, wherein it is provided that "each district court or judge thereof shall appoint its clerk, _who shall be the register in chancery_": Act, August 14, 1848, -- 9.

That it was so understood by the members of the first legislative a.s.sembly appears by the act of September 14, 1849, directing the mode of proceedings in chancery: See Hamilton Laws.

The system of equity jurisprudence and proceedings in equity adopted by the first code commissioners has now prevailed in Oregon for forty years, and during all that time I think has met the approbation of both bench and the bar.

Another thing agreed upon by the commissioners was that the code should be prepared so that it might be adopted by the legislative a.s.sembly in several acts instead of one, as was done in the Chapman Code in 1850. This was done in order to comply with the provisions of the organic law, which required that every act should embrace but one object.

These preliminaries being settled it was agreed that each commissioner should take one subject and prepare the draft for an act upon that particular branch of the law. During the preparation of these drafts the commissioners held frequent consultations, as often as once or twice a week, to discuss and agree upon the proper phraseology to be adopted, or arrangement of subject-matter in the proposed act.

It was agreed among us that Mr. Boise should prepare the act relating to executors and administrators, and also proceedings in the probate courts.

To Mr. Bigelow was a.s.signed the duty of preparing the act relating to crimes and misdemeanors, and to regulate criminal proceedings. I undertook to prepare the code of civil procedure in actions at law and suits in equity.

These three subjects embraced the greater part of the laws which we undertook to prepare, and, after their completion, the remaining portion of our work was comparatively easy and brief. According to my recollection it was completed in the latter part of the summer or early fall of 1853. We prepared the draft for an entirely new code of statutory laws, with the single exception of the law relating to wills. This had been enacted by the legislative a.s.sembly in 1849, at its first session, the main features of it being a transcript from the Missouri statute on the same subject. As this was one of the first acts pa.s.sed by our own legislation we adopted it in our draft with only a few verbal changes.

In the spring of 1853 Joseph G. Wilson, afterwards Judge Wilson of the supreme court, came to Oregon, and about May we employed him as our clerk to transcribe the drafts prepared by us, in order that they could be printed for the use of the legislative a.s.sembly at its next session in December. We caused about two hundred copies to be printed by Mr. Asahel Bush, the territorial printer, for that purpose. These were published in an unbound octavo volume, so that they could be readily separated into different bills for legislative use.

Soon after we entered upon the discharge of our duties as commissioners many of our political friends suggested the propriety of electing one or all of us members of the next legislative a.s.sembly, so that we could explain to the members or give any desired information to them concerning our work. We soon, however, learned that Congress had pa.s.sed the act to organize the Territory of Washington, and this would necessarily prevent Mr. Bigelow from becoming a member of the Oregon legislative a.s.sembly.

Mr. Boise was nominated by the Democratic party as a candidate for member of the House of Representatives from Polk County. I was nominated by the same party as member of the Council, to fill a vacancy caused by the resignation of Hon. A. L. Lovejoy, who had recently been appointed Postal Agent for Oregon by President Pierce.

Both Mr. Boise and myself were elected on the first Monday in June, 1853.

The legislative a.s.sembly met on the first Monday in December, and after the respective houses were organized Mr. Boise was appointed chairman of the Judiciary Committee in the lower house, while I was appointed chairman of the same committee in the upper branch of the legislature. Of course, the burden of seeing the code properly pa.s.sed rested with him and myself. We divided the draft which the code commissioners had prepared into proper bills, according to the subject-matter of each. Some of these bills were introduced into the House of Representatives by Mr. Boise, and others of them into the Council by myself. All we had to do was simply to preface an enacting clause to the bill as it had been printed by order of the commissioners, and to insert a section at the end of each bill declaring that the act should be in force from and after the first of May next. The reason these acts were made to take effect on May 1, 1854, was that there was no possibility of having them printed before that time. Indeed, there were no facilities then existing in Oregon for either printing or binding the volume containing the statutes comprised in the first code. Mr. Bush, the territorial printer, made arrangements to have them printed and bound in New York. I do not now remember how many copies of the code were ordered to be printed, but certainly several hundred. About two hundred of these were sent to Oregon by way of Panama and arrived safely some time in the summer of 1854. The remaining copies of that edition were sent around Cape Horn by a sailing vessel. These never reached Oregon. They were either shipwrecked or so injured that they were worthless. At the next session of the legislative a.s.sembly, commencing in December, 1854, that body ordered a new edition to be printed to supply the place of the copies which were lost at sea, and that edition was printed in New York in 1855. It included the acts which were pa.s.sed at that session with those of the code adopted at the preceding session of the legislature. This accounts for the printing of two editions--one in 1854 and another in 1855.

Between May 1, 1854, when the code took effect and the arrival of the first copies of the printed volume from New York, we were somewhat troubled for want of evidence of existing statutes, and the judges and lawyers used in the courts copies of the printed draft reported by the code commissioners. A few of these unbound volumes still remained and such changes as had been made by the legislature were noted in them.

Some of the lawyers even went to the trouble of having them indexed so as to be more convenient for reference and citation. When, however, the first copies of the code arrived from New York these unbound copies of the code commissioners' draft were thrown aside. One of them I kept as a time-honored curiosity for many years.

Although the _Oregon Code_, as it was then termed, has since been revised two or three times to adapt it to a state, instead of a territorial government, yet in its main features it has remained substantially the same as when prepared by the first code commissioners and adopted by the legislative a.s.sembly of 1853-54.

The commissioners who prepared the first code of Oregon are all still living [1894], but nearly all the members of the legislature that adopted it are gone. Besides Judge Boise and myself I can think of no one of them who is now living.

JAMES K. KELLY.

_September 25, 1894._

A PIONEER RAILROAD BUILDER.

Responding to a request for an account of the operations of Dr. D. S.

Baker as a promoter and financier of transportation enterprises, and particularly of the Walla Walla and Columbia River Railway, I herewith submit some sc.r.a.ps of history.

Dr. Dorsey S. Baker was born in Wabash County, Illinois, October 18, 1823. He studied the profession of medicine at the Philadelphia Medical College. Crossed the Plains to Oregon with the emigration of 1848, and went to California in 1849. The practice of his profession was remunerative, but his strong predilection for business led him to abandon a profession always distasteful.

He engaged in the hardware business in Portland in the early fifties, and subsequently built a flouring mill at Oakland, in Southern Oregon, and it was his boast that he brought to Oregon the first pair of mill stones ever used in the State. In 1861 he removed to Walla Walla, then a trading post adjacent to the army garrison established some years previously. He engaged in the mercantile business, being a.s.sociated with William Stephens. The firm name was D. S. Baker & Co., afterward changed to Baker & Boyer, when his brother-in-law, John F. Boyer, was taken into the firm. The firm did a large business with the stockmen and settlers, and in outfitting miners and packers flocking by thousands to the Oro Fino and Florence mines, and later to Boise, Idaho, and Montana. Sales were large and profits good, and the firm of Baker & Boyer flourished.

Doctor Baker was a man of keen business judgment and great foresight.

It is probably not an over statement to say that the State of Washington has not numbered among her citizens any that approached him in financial ability. In 1862 he became a.s.sociated with the late Senator Corbett and Captain Ankeny in the steamboat business. They built the steamer Spray, which plied between Celilo and Lewiston. The company had boats on what was known as the Middle River, between The Dalles and the Cascades, and also on the Lower River between the Cascades and Portland. They built a wooden tramway portage on the Washington side at the cascades, using mules as motive power. The remains of this tramway could be seen from the opposite sh.o.r.e within recent years. This company's line was run in opposition to that of the Oregon Steam Navigation Company, to which it finally sold.

The portage of the cascades, being the key to the situation, was the bone of contention. The Oregon Steam Navigation Company had procured the pa.s.sage of a bill through Congress giving them what they claimed to be an exclusive right of way over the cascade portage, and this question not having been at that time adjudicated, Doctor Baker's company sold out as above recited.

Doctor Baker's next transportation enterprise was the building of a narrow gauge railroad from Walla Walla to Wallula. He organized a company under the corporate name of the Walla Walla and Columbia River Railroad Company in 1871. Among the original stockholders were Doctor Baker, John F. Boyer, Paine Brothers & Moore, B. L. Sharpstein, Charles Moore, B. F. Stone, William Stephens, William O. Green--all residents of Walla Walla. Doctor Baker was, however, the capitalist, and it was his money, his energy and unflagging perseverance that carried the enterprise to a successful consummation. To build thirty miles of railroad under conditions then existing was a great undertaking. Ties and timber for bridges had to be obtained from the head waters of the Yakima River, an untried stream.

A logging camp was established in the winter of 1872--a Wisconsin lumberman named Tarbox being placed in charge. An attempt was made to drive logs to the mouth of the Yakima the following spring, but the water proved insufficient and the log drive was hung up. Another expedition was sent to the woods the following winter, in charge of D.

W. Small, afterward a well known resident and business man of Walla Walla. He succeeded, by incredible effort, in bringing out the logs. A mill was erected on the banks or east bank of the Columbia above the old town of Wallula, where the ties were sawed, and it was at this point that the first railroad construction in Washington, other than the portage road of the cascades, was begun. Two small dummy or camel-back engines were bought in Pennsylvania and shipped out via San Francisco and Portland. Freight on them from Portland to Wallula was about $450 each. The first ten miles of the road was built with wooden stringers six by six, laid on cross ties. It was Doctor Baker's belief that these ties would last for a few years, and it was his intention to then replace them with T rails, but in this he was doomed to disappointment. When construction had reached the ten-mile post, the wooden rails at the river end were worn out. He then bought ten miles of strap iron and continued construction. This also proved a failure.

Finally, convinced in the rough school of actual experience that T rail only would serve his purpose, he ordered, through Allen & Lewis of Portland, twenty miles of 26-pound rail. This was purchased in Wales and was brought around the Horn in a clipper ship coming to the Columbia River for a cargo of wheat. From Portland the rail was shipped by the Oregon Steam Navigation Company line to Wallula. This involved five handlings--two at the cascade portage, two at The Dalles, and one at Wallula. The cost of the rails and the freight were both very great. When the road reached a point ten miles out from the Columbia it began to haul wheat, the teamsters being glad to avoid the long, hard pull over the sandy roads.

When the road had reached Whitman Station, six miles west of Walla Walla, Doctor Baker's available funds were exhausted, and he would not borrow. He thereupon announced that its terminus would remain there until the earnings sufficed to complete it to Walla Walla. The citizens, fearing a rival town would spring up at Whitman, promptly raised and donated $25,000 to secure the continuance of the road to Walla Walla.

In the inception of the enterprise, Doctor Baker had asked Walla Walla County, through the board of county commissioners, to guarantee the interest on a proposed issue of bonds, to be sold to provide funds for the construction of the road, offering in return to permit the commissioners to fix the rate for carrying grain to the Columbia, provided only the rate should not be less than $3 per ton. The question was submitted to a vote, and rejected by a decided majority.

Doctor Baker then said: "I will build the road without your a.s.sistance, and you must allow me to fix the rate." The rate was $5 per ton from Walla Walla to the river. There was an additional charge of fifty cents for transfer to the steamboat. The Oregon Steam Navigation Company's charge was $6 per ton, and there was a wharf.a.ge charge at Portland of 50 cents, making a total of $12 per ton, or thirty-six cents per bushel from Walla Walla to Portland. The charge of $5 per ton seems now a pretty stiff rate, but teamsters in those days sometimes charged $12 per ton for the same haul, although the usual charge was $6. They could not always handle the crop, and the price fluctuated.

During the discouraging period of construction few people believed Doctor Baker would ever complete the road. His friends thought he would fail utterly, and predicted that his fortune would be lost, but the Doctor knew better than most the wealth of the country's undeveloped resources, and with a faith that nothing could shake, and with a determination that grew stronger as each obstacle presented itself, continued the work of construction, staking his last dollar on the success of his enterprise. No mortgage was ever placed on the property during his ownership, and no lien or debt enc.u.mbered it. It paid unheard of dividends, and was sold at a price greatly exceeding its cost. The Oregon Steam Navigation Company bought six-sevenths of the stock in 1877, Doctor Baker remaining as president. During this ownership a branch line was built from Whitman to a point known as Blue Mountain Station, in Umatilla County, Oregon, to tap the wheat fields of that county.

Still later, on the first day of July, 1879, the road was included in a sale made by the Oregon Steam Navigation Company to Henry Villard.

The track was changed to a standard gauge, and became a part of the present Oregon Railway and Navigation system.

Many amusing stories are told of experiences in traveling over this line, known as Doctor Baker's "rawhide road." Wheat was hauled on flat cars. A box car, with seats along the sides, originally did duty as a pa.s.senger coach. To the traveling public this was known as "the hea.r.s.e," but no serious accident ever occurred on the line. It was strictly a daylight road, Doctor Baker persistently refusing to allow trains to be run at night.

H. W. Fairweather, who took charge of the road after its purchase by the Oregon Railway and Navigation Company, still tells of some of his early experiences. At that time the law required a printed schedule of freight rates to be posted in each car. Looking about in vain, he finally found the required notice posted in the roof of the car in such a position that to read it the reader must lie on his back. The newspapers have another story regarding General Sherman's ride over this road. In 1877 the General had ridden through Montana and Idaho, examining the country with reference to the proper location of military posts, and had reached Walla Walla on his way to the coast.

He is said to have made application for a special train to take him to Wallula, which Doctor Baker refused to furnish, remarking that there was a train load of wheat going out during the afternoon, upon which the General could take pa.s.sage, and that availing himself of the opportunity, this aggregation of military glory bestrode a sack of wheat, and thus mounted, was dispatched on his journey. The fact was that he rode in a pa.s.senger coach attached to the freight train, but perhaps it is hardly worth while to spoil so good a story.

Some years after the sale of the Walla Walla and Columbia River line, Doctor Baker built another narrow gauge to connect with a timber flume bringing lumber and wood to Walla Walla. This line was fifteen miles in length and extended to the town of Dixie in the foot hills of the Blue Mountains. It did a considerable business in transporting wheat.

This was also sold to the Oregon Railway and Navigation Company, which company still operates it as a narrow gauge.

This was Doctor Baker's last undertaking, his health having failed soon after the completion of this road.

When Henry Villiard first met Doctor Baker, he said to him: "You were a bold man to build into the lion's jaws," refering to the fact that the Oregon Railway and Navigation Company controlled the outlet down the Columbia, but Doctor Baker had formulated a maxim, "He who owns the approaches to the river owns the river," by which he meant that the business of the boats originated on the railroad and the boats were dependent on the railroad.