SIR: The papers lately received from the Hon. John P. Gaines, which I communicated to you and which you were pleased to refer to me for my opinion. thereon, have been carefully examined and considered. They consist, first, of what purports to be an act of the Legislative Assembly of the Territory of Oregon; secondly, a message from Governor Gaines to that assembly, bearing date 3d of February, 1851, expressing, for reasons given, his dissent to that act and his refusal to participate in its execution; and thirdly, an opinion of the United States attorney for that Territory, given on the application of the Governor, against the validity of the said act.

The only acts of Congress which I have found relating to the subject are "An act to establish the territorial government of Oregon," passed 14th August, 1848, and "An act to make further appropriations for public buildings in the Territories of Minnesota and Oregon," passed June 11th, 1850.

By the first of these acts the legislative power and authority are vested in the Legislative Assembly of the Territory consisting of a Council and House of Representatives and the concurrence or approval of the Governor is not requisite to the validity of their acts of legislation. The power to "locate and establish the seat of government for said Territory at such place as they may deem eligible," is expressly given to that Assembly by the 15th section of that act. It may be a question how far this general and exclusive power of legislation has been qualified by the act of Congress above mentioned of the 11th of June, 1850, in the instances therein embraced. That act in its first section, provides, "that the sum of twenty thousand dollars each be and the same is hereby appropriated, out of any money in the treasury not otherwise appropriated, to be applied by the governors and Legislative Assemblies of the Territories of Minnesota and Oregon at such place as they may select in said Territories for the erection of penitentiaries;" and in its third section, it further provides "that the sum of twenty thousand dollars be and the same is hereby appropriated and to be applied by the Governor and Legislative Assembly of the Territory of Oregon, to the erection of suitable public buildings at the seat of government in said Territory."

This last section does not, in my opinion, conflict or interfere with the previous exclusive power of the Assembly to "locate" their seat of government as they thought proper. It gives the governor no control or voice on that question. But the seat of government once fixed by the Assembly, it does give him a concurrent and equal authority with them in the application of the money to the purpose designated. This concurrence was required probably as an additional security for the proper expenditure and use of the money granted. And to the extent and in reference to the use of this money the legislative power of the Assembly is qualified, and they cannot dispose of it without the concurrence of the governor.

In regard to the first section of the act and the appropriation of the twenty thousand dollars for the erection of a penitentiary in Oregon, the act is too explicit to leave any room for construction. That money, in the words of the law, is to be applied "by the governor or Legislative Assembly of Oregon, at such place as they may select for the erection of a penitentiary." By the force of this language the governor must have a con

current and equal power with the Assembly, not only in the application of this money to the erection of the necessary buildings, but in the selection. of the place where they are to be erected.

On the other topics presented in the message of Governor Gaines and in the written opinion of the United States attorney, it is unnecessary perhaps for me to say more, than that I entirely concur in the views expressed by those gentlemen.

The act of Congress which established the territorial government of Oregon and from which its Legislative Assembly derives its existence and its power, expressly and imperatively declares that, "to avoid improper influences which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object and that shall be expressed in the title."

That the act of the Legislative Assembly in question does "embrace more than one object" and that it is therefore in violation of the act of Congress, is a proposition that cannot be made plainer by argument. The same act of Congress declares what shall be the consequence of such a violation of its provisions, namely, that the territorial act "shall be utterly null and void."

My opinion, therefore, of the act in question is, that it is null and void in all its parts, and consequently can give no legal validity to anything done under color of its authority.

This statement, with the message of the governor, the act of the Legislative Assembly and the opinion of the attorney of the United States for the Territory, will present the subject fully and enable you to give whatever direction may be deemed proper.

I shall be gratified if the remarks I have made shall in any degree facilitate your examination and decision of the subject.

I have the honor to be, very respectfully, sir, your obedient servant,

To the PRESIDENT.

No. 3.

J. J. CRITTENDEN.

OREGON CITY, December 6, 1851. SIR: The act of the last Assembly of Oregon, entitled "An act to provide for the selection of places for location and erection of the public buildings of the Territory of Oregon," having been declared void by the Supreme Court of the Territory at its present session, and the Assembly of the present year having assembled under that law at Salem, and proceeding to enact laws, &c., I desire to be instructed as to my duty in disbursing their expenses.

I send you the opinions of the court. You have a copy of the laws of Oregon, which I ordered to be sent you from New York.

Hon. E. WHITTLESEY,

Yours respectfully,

E. HAMILTON,

Secretary of Oregon.

First Comptroller, Treasury Department.

SECRETARY'S OFFICE,

Oregon City, December 17, 1851. SIR: I had the honor of writing you two weeks since, detailing the posture of affairs here, and requesting instructions. I trust if you have not replied to that letter, you will by the first mail after the reception of this, reply to that and this.

That portion of the members of the Assembly which met here adjourned to-day sine die, without having formed a quorum of either branch, upon information that the body now in session at Salem intend to remain there and go on to enact laws.

I have not repaired to Salem to discharge my duties as Secretary, because I have looked upon their action as unwarranted by law.

Those members who met here applied to me for payment of their mileage and per diem. I have reserved the payment until I shall be instructed by the department upon the whole question.

I consider the failure to effect an organization of the Assembly, from any cause, as a case not provided for by the law defining my duties, and one rendering it proper for me to take your decision upon it before action.

It was undoubtedly a praiseworthy act on the part of the members attending here to obey the law as pronounced by the supreme court, the effect of which makes Oregon City, and not Salem, the seat of government. They have done their duty in all respects, and are within the equity of the law, as will, I suppose, be considered by you.

What is my duty, then, in the premises? Are the journals and proceedings of both or either of these bodies to be printed by me? Are the mileage and per diem of both or either to be paid, together with the incidental expenses.

I understand the body at Salem claim to act under the law of last winter, entitled "An act to provide for the selection of places for location and erection of public buildings of the Territory of Oregon," [See general laws of Oregon, page 222, herewith sent you by mail.] This act the supreme court, composed of Judges Nelson and Strong, at the recent term, held in December, pronounced null and void." It is so decided on the ground that it is a palpable violation of the act of Congress of August 14, 1848, latter part of section 6, and the act of June 11, 1850, making appropriations for penitentiaries in Minnesota and Oregon, which gives the governor an approval or co-ordinate power over the location and selection of the sites.

The meeting at Salem denies the decision to be law, because the judges did not meet at Salem to hold the court; that if it be the law they are still not bound by it, and have the legal and constitutional right to hold their session there, under their law of last winter. They claim that the organic law of the Territory, imposing the mode or manner of enacting laws is. merely directory, and that the Assembly and not the court is competent to determine its infraction; that the Assembly is only responsible to the constituency for its violation, &c., &c.

I desire to avoid opinion, and only to state the position of parties and their grounds of action.

The opinions of the court were published in the "Oregonian" of the 6th, and were forwarded from the publication office, I learn, to yours and

other departments at Washington. The governor will send them with this. mail to the President.

I am, with great respect, your obedient servant,

Hon. E. WHITTLESEY,

First Comptroller, United States Treasury.

E. HAMILTON.

TREASURY DEpartment,

Comptroller's Office, February 26, 1852. SIR: Your favors of the 6th and 17th of December were duly received, and they were not answered because I waited to receive the decision of the judges of the supreme court of Oregon, on the constitutionality of the act passed by the territorial legislature, removing the seat of government from Oregon city to Salem. This I did not see before yesterday. In expressing my regret to Mr. Dart, that the decision had not been received, he said he had a paper containing it, and yesterday he handed the paper to me. My opinion is at present, that you should pay the members who met at Oregon city; but not those who assembled at Salem.

I was told, last evening, by the Hon. Eben Newton, that Governor Lane presented yesterday, or perhaps earlier, the memorial of Mr. Lancaster, involving the legality of the law. He did not read the memorial, and only spoke from his general impression. Governor Lane remarked to him, that it was a very well drawn and an able

paper.

Congress may take some action in the matter; but at present, with the opinion of the attorney general, and the decision of a majority of the territorial supreme court, I think the acts of the legislature should be deemed null and void, and that no expense incurred by the members who assembled at Salem should be paid.

Of course, their journals nor proceedings of any kind are to be paid for at the public expense.

I regret, as all must who desire the prosperity of that new and interesting Territory, that there has been a division in your councils.

Most sincerely yours,

EDWARD HAMILTON, Esq.,

Secretary of the Territory of Oregon.

ELISHA WHITTLESEY.

UNITED STATES SUPREME COURT FOR THE TERRITORY OF OREGON.

Amos M. Short,

vs.

F. Ermatinger.

In error from Clackamas county district court.

A. E. Wait, attorney for plaintiff

W. W. Chapman, attorney for defendant.

On the question as to the proper place for holding the present term of the supreme court, the court decided as follows:

Associate Justice Strong's opinion.

The question before the court is one of grave importance. The decision upon the constitutionality of an important legislative act, by a court of supreme jurisdiction, is a serious matter; and the court will at all times approach the investigation of a case involving the necessity of such a decision, with great caution. Yet it is a duty from which they are compelled by the obligations of their oaths, not to shrink, when it is legitimately brought before them in a case between parties litigant.

This case is also important from the fact, to which the court cannot close their eyes, that the question involved is one of absorbing interest to the entire population of the Territory. And well may it be so considered, for upon its proper determination by the court, and the peaceful acquiescence of the people at this time in such determination, depends, in a great degree, the destiny of this new and rapidly growing Territory. If, in our action as a people, on this question, we exhibit a disposition to be governed by those priciples of law which lie at the foundation of all our civil rights, and be governed in our action by the decision of that tribunal which has been constituted to decide upon them, all will be well. If, on the contrary, misled by partizan feeling, passion, prejudice, sectional or local interests, we trample law and order under foot, the consequences, at this early period in our attempt at self-government as a Territory, may, and certainly must be such as good men will look forward to with fearful apprehensions. It is only in times of great popular excitement that the people are liable to forget, and tempted to overstep those great fundamental principles in our government by which the power of the people is distributed and apportioned to the different departinents-legislative, executive, and judicial; and if we wish to preserve the free institutions under which, as a people, we have long been so highly prospered, it is at such times that we should be extremely cautious not to be led into rash and inconsiderate action. Our past history has shown that when the excitement is over, the people are sure to return to the good old ways of their fathers which they have tried so long and love so well; but vastly more desirable is it to continue in the right path, than having gone astray to return, though to forsake an error when discovered and correct our course is an attribute characteristic of Americans, and of which we may well be proud.

Had not objections been made in the cause now on trial before the court which compel us to decide this point, that our decision, if the parties are not satisfied, may be made the subject of review by the appropriate tribunal, the court would have remained silent, our actual sitting and transacting business as a court at Oregon city being of itself a virtual decision; but the party requiring the decision upon this point and being entitled to receive it, it is made. It is, however, in the view of the case that I have before presented, that I bave felt called upon to give the subject my most serious attention, much more so than I would have deemed necessary had it been a matter involving simply dollars and cents, in amount however large. I have given it such consideration, and it is a source of satisfaction to feel that the decision to which we have come, is clear both upon principle and authority; so clear it seems to me, as to leave no cause for a reasonable