Oregon State Bar Bulletin — MAY 2009
Legal Heritage
Back in the Day:
Lessons from Oregon Reports, Volume 1
By Hon. Deanne Darling

While waiting for a trial to start the other day, I filled my free time by reading Volume 1 of the Oregon Reports. All the cases decided by the Oregon Supreme Court (then the only appellate court) from 1853 to 1862 were contained in this one 436-page book. Just for comparison purposes, look on your shelf and see how many volumes of books for cases from the two appellate courts exist for the last nine years.

The issues were different and yet strikingly similar 150 years ago in the Territory of Oregon. There were three members of the court — one chief justice and two associate justices. In the nine years under review, three different panels served. The court was originally convened in Oregon City (the “capitol” of the territory in pre-statehood years) and then moved to Portland. Business was conducted during two terms per year; one started the third Monday in June and the other on the first Monday of December. It is unclear how long these terms lasted. (I think not long.) By August 1857, two more terms were added. The annual salary was $2,000. No written opinions were issued in 1853.

The court had 22 rules to govern itself, taking up six pages of Volume 1. My favorite rule is No. 6, which required that transcripts were to be distinctly numbered and that each folio must consist of 100 words and be fairly and legibly written — or it was subject to being rejected. Rule 10 required defendants’ pleadings to be filed by 4 p.m. on the first day of the term. The appellant was referred to as the affirmative. Legal interest was 6 percent. The trial court was known as District Court.

Case No. 1 involved a trial on a charge of trespass. Judgment had been for the defense, and the plaintiff was seeking a new trial. In the opinion affirming the trial court, the following appears:

“When a party brings the record … here for revision and alleges that there is error in such record, he must show, not a possible or probable case of mistake, but positive error, injurious to his interests. The court will not go out of the record into the regions of conjecture to find such

(Author’s note: Nothing has changed but the use of language.)

Case No. 4 is US of America vs. Tom, a Clackamas case. “Tom, an Indian, was indicted … for selling liquor to the Indians.” The opinion goes on:

“The case is not free from doubt or difficulty. Oregon is generally supposed to be part of the Indian country named in the act of Congress of June 30, 1834; but such is not the case.”

In discussing the purpose and application of the act, the justices opine:

“If required in a country wholly inhabited by Indians, how much greater the necessity for its enforcement here, where defenseless white persons, women and children are exposed to the violence of drunken savages. Selling liquor to Indians is not necessary to the welfare or prosperity of the people here; on the contrary, such a prohibition is a blessing to the Indians and highly promotive to the safety, peace and good order of the whole community.”

This position was not without discord on the court. Both associate justices wrote to agree with the conclusion — upholding the conviction — but not the reason.

Many cases were filed that involved ferries and water rights. There was even an early statute of frauds case. Next follows the sad case of Nimrod O’Kelly, who was indicted, tried and convicted of murder. Sentence: “Hanging.” Dear Nimrod, unhappy with the thought, appealed. Among his numerous complaints was the fact that he had not been given the required 10 days notice of trial. He was also not happy with the jury selection process. Thirty days before the trial (20 days longer than he has to know about the trial date), the county commissioners were to select “23 good and lawful men” and to deliver the list to the clerk. The clerk then issued an order to the sheriff to round up the jurors and justice began. Nimrod had nine or 10 technical objections in all. The justices were not impressed and stated:

“Time was when the unfortunate accused was dragged to trial without counsel, or a fair chance for self defense; then other rules prevailed and courts tried to make technicalities the means of justice; but when prisoners came before the courts with more privileges and presumptions in his favor … these older rules cease with the reasons on which they rested and criminals cannot be allowed refuge from the judgments of our liberal laws in the cobwebs of an antiquated practice.”

Judgment affirmed.

Next followed a suit by a private landowner on Water Street in Portland who sought to stop construction of buildings on the river bank in front of him. The case goes through an interesting history of the platting of the city by Pettygrove and Lovejoy, names that both live on today in Portland.

By the June term in 1854, the appellant is now referred to as “the plaintiff in error,” a term that hung on in appellate cases for many years to come. There is even a case that talks of a trial before a “referee.”

Lest you think comparative fault is a new creation, consider Cutler vs. Steamship Columbia, which involved a collision between a brig and a steamship. Seems the steamship was at fault, but the brig failed to use caution to avoid the ramming. Fault was apportioned and damages split. (Read the case for a good explanation.) Many cases followed over the construction of the penitentiary, both for work not done and for the work done and not paid for. Second in number are land disputes among settlers.

In 1854, Mr. Hart and Mr. Blisset were convicted of “keeping open a house on Sunday for the sale of spirituous liquors.” The claimed error was in the clerk failing to “draw” jurors from the box but rather reading them from a prepared list. An insufficient number of jurors appeared and so bystanders were drafted. They lost the appeal (see Nimrod case above for reasons).

I think my very favorite was the case of Louis Vandoff vs. Daniel Otis. Again it is a land dispute — with a twist. Men were entitled to 320 acres of homestead land, but if they were married, the entitlement doubled. Seems Otis was “a settler, with an Indian woman for a wife”; Vandoff (who wanted the land) claimed that Otis was not married at all. Throughout the opinion, the poor dear is repeatedly referred to as “a woman of the Indian race” who was not “of the required color” to qualify as a wife. The argument went that since the land grant laws referred to white men, it had to also mean white women as wives:

“Now, is not a man legally married to an Indian woman as much a married man to all intents and purposes, as though his wife were the “fairest of the fair”? Is not an Indian woman married to a white male citizen of the US a “wife in every sense of the law”? If 2 women are married in the same way to the same sort of man, can it be said that one is a wife because she is white and the other is not because she is copper colored? Are the children…bastards because she is not white?”

After determining that it would be “better” if the land belonged to whites, the judges decided that such was within the power of Congress to so decide — and they had not done so. Then, as if to rationalize the result, they announce the public policy behind the decision that Indian women could be wives:

“Indian women as wives of white men and the offspring of such marriages, are unavoidably a part of our people, and it is better that they should have property and homes than that they should be worthless and wandering vagabonds in the country.”

(Author’s note: To quote Pearl Buck, “To know the present we must understand the past.” I suspect that similar values could be driving the foreclosure bailout of current times.)

In Frisbie vs. State of Oregon, Henry Frisbie is charged with “suffering a gambling device.” The facts are as follows:

“[W]itnesses and others met at defendants grocery in the after part of the day; made up a game of what is familiarly known as poker, half dollar ante; played with common playing cards on a a card table; played all night; Frisbie was in the game; sometimes won and sometimes lost; used several packs of cards; they were paid for out of the common fund.”

The error complained of in the appeal was the instructions to the jury. The exact charge in the pleadings was “setting up and using … a gambling device.” Henry felt that the term “set up” was too vague. In ruling against dear Henry, the justices offer this explanation:

“It is said that a man has “set up” the business of a merchant or the trade of a carpenter; or that he has “set up” a life with fair prospects, and in this we think that there was good reason for saying the plaintiff in error has set up the occupation of gambler. The form of expression is too common to be misunderstood.”

Later in the volume appears the case of Goodall vs. State of Oregon. Goodall was on trial for murder. The victim’s dying declaration was offered. Goodall objects and seeks to prove that the victim “was a disbeliever in a future state of rewards and punishments” for the purpose of discrediting the declaration. The trial judge denied the admission of that evidence. In upholding the trial judge, the court held:

“It is supposed that one impressed with fear of immediately impending dissolution and believing that he will soon be called to answer for the truth of his statement to his final judge, will be under restraint against falsehood sufficient to make admission of such evidence safe and generally contribute to the ends of justice.”

This dying declaration rule still exists in the evidence code of today.

By 1859, the court becomes known as the District Court of the United States for the District of Oregon.

Shortly thereafter, Oregon becomes a state. One hundred fifty years later, county district court has ceased to exist and circuit court is the order of the day. Pay is better, work is full time. But some of us are still working in the courthouses that stood in Oregon’s early days. Appellate courts in number and in volume have grown as well. However, if you take the time to read Volume 1, you will find that the issues and concerns are not that much different, and the rules that we take for granted today seem to be steeped in a time long since passed.

I will try to remember the teachings of my predecessors as I attend to the daily work of being a judge.

Deanne L. Darling is a judge in Clackamas County Circuit Court.

© 2009 Deanne L. Darling

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