Frederick Van Voorhies Holman

“ If a municipality can give itself the right to condemn property outside its limits we may well consider what would be the effect if one municipality tried to appropriate the property of another, for, while it is the law that, without previous authority so to do, one corporation, public or private, cannot appropriate property already devoted to another public use, a municipality might give itself this power, under these initiative amendments of 1906. ”

“ EULOGY OF LEWIS AND CLARK When Lewis and Clark organized and started on their Expedition , they knew that they were going into an un charted and unknown wilderness , probably inhabited by wild and savage Indians ; that they would have to rely for their sustenance on game along the route ; that they would pro bably have to stay at least two winters in the wilderness before returning to their starting place on the Missouri River . Lewis and Clark and their party were intrepid men — they were unafraid —they did not hesitate . They overcame and surmounted every obstacle and difficulty . ”

“ That men selected by popular vote to make up the State Legislature were often careless, somtimes stupid and occasionally venal, seemed to prove that men assembled in a legislative body were a curse instead of a blessing, and that the same men, together with the voters who had chosen them, were careful, intelligent, efficient, virtuous, capable and honest men when acting individually as law makers. ”

“ So, unless there was a war over the Oregon question in which Great Britain would be successful, there was no chance or danger that the part of Oregon over which the original Provisional Government assumed to exercise control would be- long to Great Britain or required saving to the United States. While this may not have been known to any of the fifty-two persons who voted for a provisional government, May 2, 1843, it does not change the fact. One can not find what is not lost, nor save that which is not in peril. ”

“ The power of eminent domain has existed in all ages as an acknowledged attribute of sovereignty. It is inherent in every sovereign Government, and is not conferred by Constitutions, but is limited and regulated by them. It cannot be surrendered by grant or contract, since its continued exercise is essential to the existence of organized society. This power exists in each of the States of the Union, whether it is expressly conferred by the Constitution or not. ”

“ Simon Fraser was one of the intrepid explorers and hardy pioneers of the Pacific Northwest, men who found the way and showed others where and how to follow. The armies of occupation and of civilization followed slowly on. In a few years he was succeeded by the great leaders and successful furtraders of the Hudson's Bay Company. At the old, the original Vancouver, on the Columbia River, came and ruled. Dr. John McLoughlin, the Father of Oregon, James Douglas, afterwards knighted, and Peter Skene Ogden, all held in grateful memory in Oregon and Washington. ”

“ It is a hard matter for any Court, without precedent, to take into account what may be the effect of a decision or opinion in one case on other cases or matters not before decided by any Court. And this is largely the position the Oregon Courts find themselves in. When the Supreme Court found what the effect would be in holding that the Legislature could not enact, amend or repeal any municipal charter in the State, and that a municipality might attempt to exercise powers in derogation of the sovereignty of the State itself, it became a serious matter. ”

“ We have the honor to acknowledge your favor of the 14th inst, and beg in reply to say, that, viewing the organization as a compact of certain parties, British and Ameri- can subjects residing in Oregon, to afford each other protection in person and property, to maintain the peace of the community, and prevent the commission of crime a protection which all parties in this country feel they particularly stand in need of as neither the British nor American government appear at liberty to extend the jurisdiction of their laws to this part of America ”

“ A city occupies, as it were, a dual relation to the State—the one governmental or political, and the other proprietary or private. In its governmental or political capacity it is nothing more than a mere governmental agent, subject to the absolute control of the Legislature, except as restricted by the Constitution, and such property and easements as it may have in public streets and ways is held by it in such capacity, and at the will of the Legislature. ”

“ REASONS FOR FORMING A PROVISIONAL GOVERNMENT. As I have said, there were no laws in Oregon which applied to American citizens, but the Hudson's Bay Company, through Dr. McLoughlin, exercised a commanding influence over the conduct of affairs. There were no lawsuits, for there were no courts and but little trouble between the American settlers, or between them and the Hudson's Bay Company's people, and other British subjects, although there was occasionally some small friction. The Indians in the Willamette Valley were a negligible quantity. ”

“ As descendants of the United States and of Great Britain, we should honor and respect the countries which gave us birth; and, as citizens of Oregon, we should, by a uniform course of proceeding, and a strict observance of the rules of justice, equity, and republican principles, without party dis- tinction, use our best endeavors to cultivate the kind feeling, not only of our native countries, but of all the powers or states with whom we may have intercourse. ”

“ And so it came about that without changing the voters, except by numbers, as Oregon is a growing State, the people who supposed they could not govern themselves by a representative form of government, to which they were accustomed, adopted a democratic form of government, of which they knew nothing as to its workings, evidently believing that as they were incapable of electing proper representatives they were capable of enacting their laws by popular vote, and as conditions were unsatisfactory they could be bettered by upsetting the existing order. ”

“ The power to alter, amend, or repeal the charter of a public corporation must necessarily exist without limitation in the sovereign, otherwise there would be 'numerous petty governments existing within the State, forming a part of it, but independent of the central of the sovereign power.' But in Oregon, by the amendments of 1906, is this sovereign power lodged in the legal voters of the respective municipalities? ”

“ By the Act of Congress of August 14, 1848, establishing the Territory of Oregon, it was provided that the existing laws of the Provisional Government, then in force, excepting all laws making grants of land or encumbering the titles of land, should continue to be valid, and to operate therein so far as the same were not inconsistent with the Constitution of the United States and the principles and provisions of said Act. ”

“ The Courts have no right to supply the omission by interpolating provisions, for it is their duty to give effect to the statutes as they are written, and they cannot amend imperfect enactments." As a matter of strict constitutional law, under the amendments of 1906, can any Oregon municipality give to itself the right to exercise any sovereign powers not granted to it by its charter from the Legislature? ”

“ We would advise that provision be made by this body for the framing and adoption of a constitution for Oregon, pre- vious to the next annual election, which may serve as a more thorough guide to her officers, and a more firm basis of her laws. It should be constructed in such a manner as would best suit the local situation of the country, and promote the general interests of the citizens, without interfering with the real or pretended rights of the United States or Great Britain ; except when the protection of life and property actually re- quire it. ”

“ Special acts cannot be passed where the Constitution forbids. The Legislature can act in the granting of permission independent of subordinate governmental agencies of the State, though the tendency of later years, which is well grounded in reason, is for the State to confer upon local municipal authorities the right to represent and to act for it in the granting of permission for the occupation or use of the public highways. The power, however, when exercised by municipal or other subordinate public corporations, must be expressly granted or appear by indisputable implication. ”

“ To appeal a civil action to the Supreme Court, merely on errors of the lower Court, will amount to nothing if there has been a verdict of a jury, for "no fact tried by a jury shall be otherwise re-examined in any Court of this State," excepting only when a case is appealed to the Supreme Court, and the whole testimony, etc., is attached to the bill of exceptions. ”

“ The people of this State by the Constitutional amendment, heretofore quoted, have seen fit to confer upon municipal corporations the right to enact their own charters, the only limitation upon that right being that such charters shall not conflict with the Constitution or the criminal laws of this State. We take it, therefore, that within the limits of the municipality, and for those purposes which are purely municipal, the City of Portland may include in its charter by amendment any provision or right that the Legislature might have granted before the Constitution was so amended. ”

“ Can it be truly said that the mere right to enact or amend a charter is a grant or a delegation of the sovereign power of Eminent Domain without limitation? And, if limited, are its limitations other than Section 18 of Article I of the Oregon Constitution, which is:
Private property shall not be taken for public use, nor the particular service of any man be demanded, without just compensation ”

“ Take this amendment, with its contradictory provisions, and determine, if you can, what was in the minds of its framers, and what was their intent.
The people and the legal voters of Oregon are certainly of as high average intelligence as those of any other State in the Union. Its earliest pioneers were people of high courage and intelligence, who first saved Oregon and then made it. Oregon has ever since attracted conservative people. ”

“ In the absence of provisions in the Constitutions, the Courts have considered that the principle was so universal and fundamental that laws not recognizing the right of the subject to compensation would be void. The Constitutions of the States do not confer upon the Legislatures the power of eminent domain, but they recognize its existence and attach conditions upon the exercise of the power. ”

“ They have no inherent jurisdiction to make laws or adopt regulations of government; they are governments of enumerated powers, acting by a delegated authority; so that while the State Legislature may exercise such powers of government coming within a proper designation of legislative power as are not expressly or impliedly prohibited, the local authorities can exercise those only which are expressly or impliedly conferred, and subject to such regulations or restrictions as are annexed to the grant. ”