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Governor Sylvester Pennoyer's Administration

Biennial Message, 1889

Source: Journal of House of the Legislative Assembly, 1889, Governor's Biennial Message, Salem, Oregon, Frank C. Baker, State Printer, 1889.

BIENNIAL MESSAGE OF GOV. SYLVESTER PENNOYER
TO THE LEGISLATIVE ASSEMBLY FIFTEENTH BIENNIAL SESSION1889

Gentlemen of the Oregon Legislative Assembly:

In obedience to the constitutional mandate which requires that the Governor “shall from time to time give to the Legislative Assembly information touching the condition of the State, and recommend such measures as he shall deem necessary,” the following information and recommendations are submitted. You are referred for more detailed information to the reports of the various State officers:

FINANCE
In order to show the growth of expenditures of the State, the subjoined figures are given for the fiscal terms of 1885-86 and 1887-88:

1885-86
Total amount of warrants drawn during term for expenditures $970,472.24
Total amount of warrants drawn subsequently for expenditures 45,740.70
[subtotal] $1,016,212.94
Deduct expenditures previously incurred, $127,460.16
Expenditures for public buildings 260,376.64
Expenditures on account of trust funds and funds arising from special tax 47,643.49
[subtotal] 435,480.29
Ordinary expenditures _________________________ $580,732.65

1887-88
Total amount of warrants drawn during term for expenditures during term $760,656.53
Deficiencies January 1, 1889, for which warrants are yet to be drawn 16,372.66
[subtotal] $777,029.19
Deduct expenses previously incurred $45,740.70
Expenditures for public buildings 85,629.66
Expenditures on account of trust funds and funds arising from special tax 65,466.99
[subtotal] 196,837.35
Ordinary expenses _________________________ $580,191.84

The expenditures for 1887-88 were swollen by the outlay of about $25,000, on account of the Railroad Commission and the Fish Commission, with the outlay hereunder, to which the previous term was not subjected.

EDUCATIONAL FUNDS
Following is a statement of the total amounts of the Common School fund on January 1st of the following years as mentioned:
1885_____________________________________________$868,735.16
1887____________________________________________1,059,409.01
1889____________________________________________1,756,700.90
Increase of funds 1885-6_____________________________ 190,637.85
“ “ 1887-8_____________________________ 697,291.89

The interest arising from such fund during the past few years has been distributed in amounts as follows:
Year /Per Capita/ Total
1885/$75/ $50,046.75
1886/90/74,571.30
1887/100/87,217.00
1888/125/108,217.50

There are also, on the first of this year, in the other trust funds, amounts as follows:
Agricultural College fund, notes and cash____________________$100,511.80
Agricultural College fund, due on certificates of sale___________ 12,627.57
[subtotal] $113,139.37
University fund, notes and cash____________________________$ 80,733.71
University fund, due on certificates_________________________ 1,472.32
______________
[total] $ 82,206.93

The total amount in the several trust funds on the 1st of the present month is $1,951,041.92.

The money belonging to the foregoing trust funds is loaned with the utmost regard to its perfect security. Careful attorneys have been selected in the several counties to make appraisement of the lands offered as security and only one-third of such appraised value is loaned on such lands. In order, however, that the board itself could also exercise its judgment as to the advisability of all loans to be made, every applicant is required to accompany his application, in answer to definite interrogatories, with a full and detailed statement concerning the property on which he desires to secure a loan.

STATE INDEBTEDNESS
The following is a statement of the indebtedness of the State of Oregon on the first day of the following years on account to warrants drawn for various purposes on the swamp land fund:

1887
Principal__________________________________$ 53,671.99
Interest __________________________________ 42,671.57
____________ $96,343.56
Less available funds in treasury_______________ 1,125.87
____________
$ 95,217.69

1889
Principal_________________________________$ 35,705.96
Interest _________________________________ 25,058.24
______________ $ 60,763.20
Less funds applicable to its payment___________ 31,351.54
___________
$ 29,411.66

All other indebtedness is merely nominal and fully provided for. It is confidently expected that within six months’ time the entire indebte3dness of the State will have been extinguished.

SWAMP LANDS
During the past two years every effort has been made to reach a finality in swamp land matters. During the summer of 1887, two federal and two State agents were in the field engaged in the examination of lands, and during the fore part of last summer a federal and a State agent continued such examination. In order to thus speedily close up such examination in expense was incurred slightly in excess of the appropriation, for which it is hoped the legislature (when it considers the great importance of a speedy adjustment of the matter) will make the necessary appropriation. IN October last, however, in order to avoid any further indebtedness, a proposition was made by the land commissioner of Oregon to the Interior department changing the stipulation existing between the State and federal government, so that for the remaining small lists of land to be examined, the repots of the federal agent would be taken as conclusive, This proposition was accepted, and the small balance of swamp lands will hereafter be examined and reported upon with on further expense to the State.

Acres swamp land patented to the State_____________________ 34,087.14
Acres swamp land certified and not patented ________________ 97,946.66
Acres swamp land examined and not certified (approximate)___ 150,000
Acres swamp land unexamined (estimate) _________________ 50,000

RIVER IMPROVEMENTS
There cannot be a more effective regulation of freight rates than that afforded by free competition. Whenever and wherever this is had there is no need of legislative interference. It was recommended to the last legislature that a one-mill tax be levied for the purpose of building a State portage railroad between The Dalles and Celilo, for the purpose of opening the Columbia river to comparatively free navigation. If this recommendation had been carried out by the legislature, the sum of $170,000 would have been available with which to now commence such work. It is again recommended that such t ax be levied for the ensuing two years, which will give to the next legislature a fund withy which to provision for opening the Columbia between the two points mentioned. The State government ought to move in this matter. The people of the Willamette valley have had for a decade and a half the benefit of low rates consequent upon the building of the canal and locks at the falls of the Willamette, and it is no more than just and fair that the State should no provide for low rates to the people of Eastern Oregon by opening the Columbia to comparatively free navigation, by the building of a [portage railroad, with moderate charges thereon, for reimbursing the State for its outlay until such time as the general government shall make the improvements it ought long since to have made. Let this tax then be levied, and if in the meantime the general government shall brave commenced its improvements the money could be diverted to the common school fund.

ASSESSMENT AND TAXATION
A change is needed in our laws relating to assessment and taxation. Under the present law the burden of taxation is quite unequally borne. Under it the honest men of the State have to bear the brunt of taxation, while the dishonest man, who, though the aid of the banks, returns a fictitious indebtedness, is rewar4ded by a belief from just taxation. The law, as it now stands and as it is now enforced, is really a law to punish by tax a man f or honesty, and to reward, by exemption from tax, a man for dishonesty. Such a law is a disgrace to any commonwealth. A change should be effected. Everything should be taxed, property of all kinds, both real and personal, and no deduction whatever for indebtedness should be allowed. It is urged by these who favor deduction of indebtedness that without such deduction there will be in certain cases a double taxation. Granting this to be true, it is equally true that with deduction if indebtedness the honest man who pays on all of his property is doubly taxed also, because his neighbor throws the extra burden upon him by avoiding taxation himself through fictitious indebtedness. It is impossible to secure absolutely just taxation, but it ca be nearest arrived at by taxing everything at its full value, and making to deductions whatever. But there can be any near approach to equal taxation in this State until deduction for indebtedness – that race behind which rogues can hide – is removed from our statute books. In order to secure assessment of property at its full value throughout the State, some supervision over the county assessors should be and either by a State officer or by the county commissioners. It would be advantageous also to provide for a meeting of the various county assessors each year just prior to the time for making assessments, by which a degree of uniformity could be arrived at by consultation and agreement. A tax on all incomes in excess of $5,000 would be a most just and equitable provision of law.

FREIGHT REGULATIONS
At the last session of the legislature a Railroad Commission was greeted with power to make investigation and repot, the law declaring that the findings of fact upon which the conclusions of the commission are based, together with its recommendation as to what reparation, if any, should be made * * * shall in all judicial proceedings be deemed prima ficie evidence as to each and every fact founded. A case in which the commission had made its recommendations as to the amount of reparation which should be made in such case by a common carrier to the person aggrieved, was carried to the Supreme Court of the State, where it was held that the legislature had conferred no express authority upon the board of commissioners to regulate the price of freight, or to determine when aggrieved was therefore dismissed. This decision, as the board of commissioners says in its report, “leaves the commission with the simple power to investigate k, make recommendations and report to the legislature.” As the commission ahs made such report, and is powerless of affection any further good, the commissioners have, for cause, been removed from office, in order to emphasize to the legislature the necessity of some change in the law, if any effective regulation is intended of the freight rates of common carriers. The recommendation made to the last legislature that a maximum rate undoubted right to enact a law regulating freight rates, but it is very questionable indeed if it can delegate such legislative power to any other body of men. Delgatus non potest delegare is a sound maxim of law, and therefore, the power that the legislature possesses in this regard being a delegated power, given to it by the people of the State under the constitution, cannot be delegated by it without express authority in the constitution.

FISHING INTERESTS
Positive prohibitory enactments should be mad against the taking of salmon in the Columbia river and its tributaries by either fish traps or fish wheels. There ought to be but one mode provided by law for the taking of salmon, and that mode should be the one open to all classes, and by which no monopoly or undue advantage can be had. It is due to those who will come after us that the fishing interest of our State should not be entirely destroyed by the greed and avarice of those now engaged in it. The records of the Supreme Court of our State (15 Oregon, 330) discloses the fact that a paid lobby was employed by those interested in the monopolies of traps and fish wheels during the last legislature, and although such a lobby may again e employed, it is to be hoped that the legislature will change the law by which the monopoly of the men owning fish traps and fish wheels may be destroyed. The last legislature created a board of three fish commissioners, one of whom is denominated president, and the law creating such board declared that “it shall be the duty of the president to see that all laws for the public waters in the State of Oregon, whether entirely or partially within the State boundaries, are enforced.” The constitution of the State declares one of the prerogatives of the Governor to be that “he shall take care that the laws are faithfully executed.” If the legislature can thus rightfully invest a commission of its own creation and selection with the powers conferred upon the Governor by the fundamental law of the land, then our constitution is a mere wanton fraud, and you supporting oaths a hollow mockery. The commission has been rather a detriment than an aid in the enforcement of the law. No further need for its existence remains since the government, and no other suitable location in Oregon, and the board asserts, can be found. Besides, it can be questioned if it is any more just for the State to expend money in the establishment of fish hatcheries in order that cannery men may have plenty of fish for future use than it would be to furnish seed wheat to the farmer in order to insure him future great harvests.

COMMISSIONS
Our State constitution, which in Article 3de declares that “the powers of the government shall be divided into three separate departments – the legislative, the executive, including the administrative and judicial,” absolutely precludes the creation of any commission endowed with any powers whatever pertaining to the management or control of any of the affairs of state. If the commission is entrusted with the enforcement of the law, that is a function conferred by the constitution upon the executive department; if it is entrusted with the regulation of freight rates of common carriers, that is a function of the legislative department from time immemorial; if it is entrusted with the power to adjust questions with them or between any other parties whatever, that is a function of the judicial department confided to it by the constitution. There is no provision of the constitution by which any power of function of the State government can be delegated to a commission, while on the other hand the express distribution of all the powers of the State government to the three designated departments absolutely inhibits the delegation of any such powers to any other body or class of men. Furthermore, if the fixing of freight rates is a legislative function, which is true beyond all cavil, then, under the 3d article of our State constitution, which declares that all the powers of the government shall be divided into three departments, the courts cannot interfere in any manner with such rates, as that article further expressly declares that “no person charged with official duties under one of these departments shall exercise any of the functions of another.” The multiplication of commissions, without authority either in the federal constitution or the constitution of any State (excepting California) is one of the most mischievous innovation in our system of government. It has the inevitable tendency to divide the responsibility in the administration of State affairs, and just to that extent it is both hurtful and confusing. And when, s in the case of California, the sole responsibility is imposed upon the commission, t he result is still more to be deprecated. In that State the railroad commission has the power conferred upon it by the constitution “to establish rated of charges for the transportation of passengers and freights by railroads, etc.,” “and enforce their decisions and correct abuses through the medium of the courts,” and it is further provided that “in all controversies, civil or criminal, the rates of fare and freight shall be deemed conclusively just and reasonable.” In that State, therefore, upon one of the most vital matters within the State, all of the three departments of State government arte shorn of all power whatever and the full control thereof has been given to a board of three commissioners, thus putting it within the power of the great corporate interests of that State, by the securing of the favor of only two men within the commonwealth to defy the wishes of the people and the power of the legislature and the courts. The control of important interests by a commission endowed with such powers is inimical to good government and the rights of the people. Our old and well established form of government is much superior in all respects to a government by commissions.

STATE CHARITABLE AND PENAL INSTITUTIONS
The attention of the legislature is called to the reports of the superintendents of the State Insane Asylum and of the Penitentiary, and the reports of the Deaf Mute School, the Blind School, and the Orphans’ Home fore the necessary information in regard to such institutions. The State is to be congratulated in having the control of the Insane Asylum and the Penitentiary under such faithful management as is bestowed by the two gentlemen who have charge of those institutions. Without any disparagement whatever of those institutions. Without any disparagement whatever of previous administrations, it can be truthfully asserted that the management of those institutions under the present supervision has never been equaled or excelled. The Deaf Mute school is under a superintendence practically independent of the State. To be sure the officers of the State Board of Education have been by law “constituted visitors to said school,” whose duty it shall be to visit the school “twice in each year, and file with the Secretary of State a report as to the condition and working of the same,” without having really any authority whatever to inquire into the supervise its management in any regard whatever. While no taxpayer of the State begrudges the expenditures for the Deaf Mute school and Orphans Home, yet it is indeed to be seriously doubted whether the State has any more right to tax the people for the support of those charitable institutions, independent of State superintendence and control, than it has to tax them for the support of other charitable institutions, like the Good Samaritan or St. Vincent’s hospitals in Portland, which are also not under State control. All charitable, penal and reformatory institutions supported by the State ought by right to be under the control of the State. The State is the owner of some fifty acres of ground in South Salem, where a suitable building might be erected, in which both the blind and deaf mute school could be kept under State control and under one supervision, until such time s the number of pupils would require separate management. Steps should be taken by the legislature towards the establishment of a reformatory school. The association of youths who have violated the law with hardened criminals should be presented. If provision for the establishment of a reform school made by which a complete separation of the youths and less hardened criminals from old offenders now confined in the penitentiary should be consummated.

STATE UNIVERSITY
From the report of the President of the Regents of the State University it will be ascertained that this university now has, sides the Villard fund of $50,000, an endowment of over eighty thousand dollars, arising from the sales of university lands, and that there yet remains over fifteen thousand acres of such lands unsold. The question will therefore present itself to the legislature as to whether the people of the whole state should any longer be taxed for an institution the benefit of which can be enjoyed by but comparatively few. The taxation of the whole people for the support of the common schools is just, because the whole people can and do have the benefit of such taxation, but the taxation of the whole people for the support of a school of which but a few have the benefit is not just and should not be continued. Of the 110 pupils in attendance at the university during the present year, 56 paid tuition and 54 had free scholarships. Free scholarships constitute another injustice that should be abolished. There is no justice whatever in allowing one-half the pupils free scholarship in a school endowed and supported by the State, while the other half are compelled to pay for their tuition. With its present endowment, and with the abolition of free scholarship, the State University can no prosper without imposing any further tax upon the people. It will also be learned from the report that certain funds belonging to the State University at Eugene have been diverted for the support of a law school at Portland. There is no authority of law whatever for such diversion of the funds of the State University, and it can well be doubted as to whether pupils can gain a proper respect for the law who receive their law education in a school supported by funds diverted without authority of law. It is also suggested in the report that the State should provide fund for the support of a school of medicine at Portland. There is now in the city a college of medicine, built by the generosity of private individuals, at the cost of $25,000, and it would not be either just or politic for the State to establish a rival school in opposition thereto in a city hardly Large enough to give good support to one such institution. An appropriation by the State for such purpose would get an at of injustice to the liberal minded men whole build up that private institution, which the legislature cannot and ought no to sanction.

THE AGRICULTURAL COLLEGE
This State institution has now an endowment of more than one hundred thousand dollars, the proceeds of the sale of Agricultural College lands donated by the general government to the State. It also receives $15,000 pre annum from the federal government under the Hatch Act. It has commodious building, erected by the generosity of the citizens of Corvallis. All that is now needed to give it a fair start is to furnish it with the necessary land for its farm. It would be proper, therefore, for the legislature to appropriate $10,000 for such purpose. When this shall have been done, together with the abolition of free scholarships, the Agricultural College at Corvallis, like the State University at Eugene, will be able with frugal management to enjoy a prosperous existence without being perpetual pensioner upon the taxpayers of the State. And the great fact should be impressed upon the legislature that it will be compelled, sooner or later, to choose between the alternative of supporting no higher schools at all than our common schools by taxation of the people, or that the number of such high school, supported by tax, will be indefinitely increased. The people of other sections of the State will argue, and with justice, too, if high institutions of learning are supported by the public treasury at Corvallis and Eugene City, that it is no more than just or proper that normal schools should be supported by the public treasury in other cities in different parts of the State. This latter course would open the door of the treasury to an unlimited expenditure of money fore the support of an unlimited number of indifferent schools, The safe course to pursue is the just course. No general tax should be levied for the support of any school but those of general benefit.

The fear that the State, which is now in possession of the Agricultural College building and grounds, may lose such possession is entirely without foundation. By authority of law the Governor has accepted the college buildings and grounds for an in behalf of the State, and as such property is under State control, and in the peaceable possession of the State by virtue of deeds of title and possession, no suit can be maintained against the State in regard to it, because, as no subject or officer of the sovereign can command the sovereign, so no court can have the jurisdiction (which work implies superiority of power) over the State requisite t oust the State from such possession. As no provision has been made by general law for bringing suit against the State, as might have been permitted under our State constitution, any party aggrieved by the State’s possession of the Agricultural College will be compelled to appeal, as every other party having claims against the State must, to the legislature in order to persuade the sovereign to do that which no subject or officer of the State has power to compel it to do. If there be any justice in their demand the legislature should grant it; if there be none. It should deny it.

ENFORCEMENT OF THE LAW
The constitution of the State of Oregon requires of the Governor that “he shall take care that the laws are faithfully executed,” and yet there is no statute of the State giving him any authority whatever to carry out this constitutional provision, to do which he gives his solemn oath. The law has conferred upon him no authority over the sheriffs of counties or prosecution attorneys of the State, or any other civil officers, and consequently in case of a State, or any other civil officers, and consequently in case of a palpable infraction of law, the Governor, as an officer, is absolutely powerless to enforce that constitutional mandate which requires him to see that the laws are faithfully executed. During the past two years positive information was imparted to the Governor at different times that the fish laws of the State were being wantonly violated, and as he could exercise by the law no authority over5 the fish commissioners, the only recourse left for him was to proceed as any private citizen could, and not as the chief executive officer should, in securing the arrest and punishment of the offenders. Provision should be mad by law by which authority should be conferred upon the Governor, in case of the violation of any State law affecting public interests, to employ a person who can ascertain the fact of such violation, and thereupon commence as public prosecuting witness proceedings in the courts for the enforcement of the laws of the State.

THE EXCLUSION LAW
The people of the commonwealth of Oregon, as well as the people of the whole country, have great cause for congratulation over the passage of the Chinese exclusion act by the fiftieth federal congress. A joint memorial of both houses of the Oregon legislature should be presented to congress praying for adequate appropriations and additional legislation, if necessary, in order to secure the rigid enforcement of the law along our frontier borders. A strong patriotic public sentiment should also be evoked, sufficient in force and purpose to secure for the exclusion law that proper respect from the federal courts which they did not accord to the restriction law. A joint memorial to congress would also be proper, asking for the enactment of a law making other evidence that Chinese necessary to substantiate any fact in the federal courts. Such a law would, to a very great extent, prevent the alien Chinese from using such courts as an instrument through which they could, by their easy and uniform habits of perjury, both evade and defy the laws of the land.

BRIBERY AT ELECTIONS
Thoughtful persons of all political parties cannot view but with deep concern the increasing systematic briery of voters at nearly all of our general elections. It is one of the most dangerous portents of the times and one of the most formidable menaces to the perpetuity of our free government. Our statute laws now hold both the bribe giver and the bribe taker as equally guilty. This is wrong. The great crime is the crime of the briber giver, and the poor man who, impelled perhaps by the necessities of his family, accepts the bribe, ought rather to be pitied than punished. It is therefore recommended that section 1844 of the laws of Oregon be repealed, which section provides for the punishment of whose who accept bribes, for ht reason that with this unjust menace removed, the punishment of the bribe giver will be rendered more easy and certain.

ELECTION OF UNITED STATES SENATOR
No more important duty devolves upon the present legislature than the election of an United States Senator. It is a fact, patent and confessed, which fact is the shame of our country and the scandal of the civilized world, that corporate power dominated the federal senate. The great masses of the people of Oregon of all political parties are opposed to such domination. The legislature, therefore, should take extreme care that in the election of a senator it shall reflect the wishes of the people and not the behest of corporations.

RECOMMENDATIONS
1st. The levying of a one-mill tax for two years for the building of a State portage railroad between The Dalles and Celilo.
2nd. A change in the laws relating to assessment and taxation, by which no deduction for indebtedness shall be allowed, and by which large incomes will be subject to taxation.
3rd. The abolishment of the railroad commission and the passage of a just maximum rate freight law.
4th. A law fixing maximum rates to be charged for Columbia river bar towage of all vessels bound to or from Oregon Ports.
5th. A general law empowering the legislative bodies of all incorporated cities to fix maximum rates to be charged by gas, water, electric light or telephone companies.
6th. The establishment of maximum rated to be charged by the railroad bridge at Portland, and by telegraph companies within the State.
7th. The repeal of the law creating the fish commission, and the passage of a law preventing the use of fish-traps and fish-wheels.
8th. The levying of no tax upon the people for the support of any other institutions of learning than our common schools.
9th. The passage of a law authorizing the Governor, in case of violation of State laws, to employ a person to commence prosecution in the courts for the punishment of the offender.
10th. A registration act applicable to cities of 5,000 inhabitants and over.
11th. The enactment of a law, similar to a provision of the Rhode Island constitution, requiring the judges of the supreme court to give their written opinion upon any question of constitutional law when required to do so either by the legislature or the Governor.
12th. A change in the laws of the State by which all county officers shall have fixed salaries, and providing that all fees collected by them under the law shall be paid into the county treasury.
13th. An addition to our lien laws, giving to laborers employed by corporations of any and every character a first lien for their wages upon whatever property of such corporations they may have labored.
14th. A change in our laws by which the punishment for vote buying at our election will be rendered more certain.

CONCLUSION
Gentlemen of the Legislative Assembly of Oregon: A kind Providence has given to the people of this common wealth a goodly heritage and has vouchsafed to them innumerable blessings. Let it be to you aim to add to these blessings the great benefits accruing from the administration of a wise and frugal government and from the enactment of just and equal laws.

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722

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