Executive and Legislative Branch Issues
Even though the delegates devoted a great deal of time debating issues related to the judicial branch, they still had plenty of questions to answer when discussion of the nature of the executive and legislative branches began. Many of the questions devolved into a challenge to see who could propose the lowest salaries for government officials. And while it was assumed that there would be no radical departures from previous state constitutions, important debates focused on the structure and operations of of the executive and legislative branches. How long would the governor's term last? How would representation be apportioned? How large would the legislature be? Where, when, and how often would it meet? These and other questions remained on the table.
Pinching government pennies
Frugality dominated the debates related to executive offices and also carried implications for other state and local offices. The delegates repeatedly obsessed over the value of a penny in setting up offices, leading a frustrated convention president Matthew Deady to lament that "every question which came up here was first discussed on the ground of its expense, as though a government could be devised without expense."(1) Many of the delegates thought that there would not be a need for a separate state treasurer for 20 or perhaps 50 years. In the meantime, they could save money by making the governor ex-officio treasurer, as Frederick Waymire dangled before the convention: "Consolidate the offices, and we decrease the taxes." Others foresaw conflicts of interest, saying that it would be an unwise "union of purse and sword." A fear of innovation also led to opposition, with W.H. Watkins saying that he "was opposed to experimenting in this constitution. He was in favor of a cheap and simple government, but would not go about experimenting." In the end, lingering misgivings led the delegates to balk, in spite of the potential savings.(2) They harbored no such misgivings, however, about designating the governor to be the ex-officio superintendent of public instruction, a dual role that saved the state money until the offices were separated in 1872.
Debt limits and salaries also suffered under the parsimonious eyes of the delegates. The delegates agreed to limit state government debts to 50,000 dollars and county debts to 5,000 dollars except in case of armed conflict. And, Delazon Smith's proposal to pay the governor just 1,500 dollars a year triggered a debate about just how stingy the convention could get. Thomas Dryer rose to accuse those on the cheap of wanting to "ride the hobby of economy," saying that he "did not believe that there was a competent man in Oregon who would accept the office for $1,500. You could get men to accept—but what sort of man would he be?" Ignoring Dryer's reasoning, one delegate suggested a mere 500 dollars, another noted that six states paid their governors less than 1,000 dollars. David Logan suggested 750 dollars, which was followed with several other proposals before the convention settled on the modest amount of 1,500 dollars.(3) Similar discussions covered other state offices, including the supreme court justices, but delegates were warned by James Kelly that
men might be willing to serve the people for less than fair compensation, if the people were too poor to pay; but when they refuse to pay a reasonable salary from downright meanness, men would not serve for less than fair pay; you put their salary [at] $1,500, and you could not get a good lawyer to take it—he can make more than that at his profession. You would get a pettifogger [inferior lawyer] on your bench, who could not make anything at his profession. And such a man you would empower to pass upon your lives, person and property.(4)
The delegates relented and agreed to pay the justices 2,000 dollars a year. Interestingly, they seemed blind to the hazards of paying the treasurer, the man with whom they would entrust the money of the state, a mere 800 dollars a year. Apparently, none of the delegates voiced concerns of incompetence or of embezzlement or other skulduggery by an underpaid official holding the new state's purse strings. That concern may have been allayed by Oregon's sorry anticipated financial situation, for as Frederick Waymire noted, with "an empty treasury, we should have no purse."(5)
Executive terms and conditions
Other discussions about the executive department related to the term, residency, and powers of the governor. After some debate, the delegates decided on a four-year term with two terms allowed within any 12-year period. An earlier proposal called for two-year terms based on fears that voters would reject the constitution without the added control of shorter terms. Opponents Frederick Waymire and Delazon Smith objected, however, to having elections too frequently, saying that other states allowed the governor to remain over two sessions of the legislature, thus adding some continuity to the government. Smith argued that "we in common with the rest of the world, were governed too much. We had elections too frequently, and had too much legislation of local character. Statutes were enacted one season to be repealed the next. If we had only biennial sessions of the legislature, let the governor be elected for two terms."(6)
Another debate questioned if a three-year residency requirement should be imposed on the office. James Kelly asked "why should a man be elected our chief executive who had only just arrived amongst us? A man should know something of a state before he assumed to take into his hands thee reins of power."
Frederick Waymire warned that "if this three years' residence is dispensed with with, we will have half the office seekers of California up here."
But William Starkweather countered that "no shackles should be put upon the people in the choice of their officers...." Starkweather's argument carried the day and no residency requirement was imposed.(7) The delegates also granted the governor customary executive pardoning powers as well as the ability to call a special session of the legislature.(8)
Apportionment proved to be central to the discussions related to the legislative branch. Fairness was at the heart of the debate over how to apportion or base representation in the legislature. Should it be set on the total population of a district or only on the number of voters? The difference in 1850s Oregon could shift the power of a county or region significantly. Many of the newly-settled "bachelor counties" had voters who were single or had yet to be joined by their wives and children. An apportionment based on total population would, it was argued, be unfair to them. William Watkins thought that these counties "had pains and penalties enough without being curtailed in their representation. In his support, William Farrar asked the provocative question that "if women were represented, why not let them vote?" Delazon Smith and others, while certainly not favoring women's suffrage, did point out that some women paid taxes and many held land claims and therefore should be recognized in some way. Besides, doing otherwise could distort society and "hold out a premium to celibacy." In the end, the delegates chose to base representation on the total population based on five-year censuses.(9)
Scheduling legislative sessions
Delegates also engaged in long debates over when to schedule sessions of the legislature. The Legislative Department Committee proposed sessions beginning in in early November. Supporter Delazon Smith described the practicality by saying that "it is the intention of the convention to limit the session to fifty or sixty days and by convening in November, there would be no necessity for adjourning over the Christmas holidays." But some delegates from the far flung counties of southern Oregon objected, protesting that the muddy roads of the end of the year made travel very difficult. Because of this, many at the convention, such as John Kelsay, favored a September start. Kelsay recalled one soggy instance in which he "had got mired in a swale in the winter on an Indian pony and had to wade out in the water up to his waist and ride all day wet." Over the course of the debate, a parade of delegates representing miners, ranchers, orchardists, and farmers proposed nearly every month of the year as suiting their particular needs. Eventually, the convention settled on the second week of September.(10)
Other topics centered on the location, makeup, and size of the legislature. In the end, the convention decided to create a bicameral body (house and senate) that would meet every other year in Salem. The house would be about twice as large as the senate. The size of the legislature was set to grow with the population of the state, up to a maximum of 60 members in the house and 30 members in the senate.(11)
1. Carey, Oregon Constitution, 213.
2. Ibid., 223, 228.
3. Ibid., 369-370, 425.
4. Ibid., 370.
5. Ibid., 228, 425.
6. Ibid, 226-227; Claudia Burton, "A Legislative History of the Oregon Constitution of 1857—Part II," Willamette Law Review 39 (2003): 343-344.
7. Carey, Oregon Constitution, 222.
8. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 624.
9. Carey, Oregon Constitution, 279-280.
10. Ibid., 280-283, 291.
11. David Schuman, "The Creation of the Oregon Constitution," Oregon Law Review 74-2 (Summer 1995): 624.