ASSEMBLY CHAMBER, April 18, 1860.) Mr. PRESIDENT:-The Assembly have this day passed Assembly Concurrent Resolution, Relative to granting Leave of Absence to Honorable Thomas Findley, State Treasurer, for one month. CONSIDERATION OF ASSEMBLY MESSAGE. Assembly Concurrent Resolution, No. 72, Relative to granting Leave of Absence for one month to Hon. Thomas Findley, State Treasurer-was taken up and concurred in. SPECIAL ORDER. Senate Bill, No. 258, and Assembly Bill, No. 291, An Act to provide for the Settlement of all Claims against the State of California, arising out of, or connected with, the Contract made on the twenty-sixth of March one thousand eight hundred and fifty-six, between the State and the late James M. Estell, for the Lease of the State Prison and Convict Labor, and to procure the Cancellation of said Contract, and the Surrender of the State Prison to the State. On motion of Mr. Dickinson, the Assembly Bill was taken up first, and considered in Committee of the Whole. IN SENATE, Mr. Parker moved that the Senate do now adjourn. Lost. The bill was then further considered in Committee of the Whole. IT SENATE. Mr. Ryan moved to indefinitely postpone the bill. Lost. Mr. Parker moved the previous question, which was sustained. Put and carried. The main question being the third reading and passage of the bill. On motion of Mr. Leet, the following documents were ordered to be placed on the Journal: COMMUNICATION FROM SUB-LESSEE OF STATE PRISON. SAN FRANCISCO, January 30, 1860. Hon. F. A. SAWYER, Chairman Joint Committee: SIR-Having been requested to present to the committee of which you are the Chairman, a proposition for the settlement of all matters in controversy between the State and myself, arising out of the contract between the State and the late Gen. James M. Estell, made on the twentyfirst of March, one thousand eight hundred and fifty-six, I now submit the following: I propose that the State shall pay to Lloyd Tevis and myself, as the Assignees of Gen. Estell, the following sums of money: Purpose. For keeping the State Prison from the twenty-sixth of December, one thousand eight hundred and fifty-seven (the date of the last payment made by the State under the contract) to the first of March, one thousand eight hundred and fifty-eight, (the date of the seizure of the State Prison by His Excellency, John B. Weller,) at ten thousand dollars per month, the contract price, two months and three days....... Profit lost by Lessee in keeping State Prison from the first of March, one thousand eight hundred and fifty-eight, the date of my eviction by John B. Weller, to the thirteenth of May, one thousand eight hundred and fifty nine, (the date at which I was restored to the possession), being five thou sand dollars per month, for fourteen months and twelve days........ For keeping the State Prison from the thirteenth of May. one thousand eight hundred and fifty-nine to date at which the State Prison shall be surrendered to the State, say first of March, one thousand eight hundred and sixty, nine months and seventeen days, at ten thousand dollars per month....... Profit relinquished in keeping State Prison from the first of March, one thousand eight hundred and sixty (date of proposed surrender to the State) to the twenty-sixth of March. one thousand eight hundred and sixty-one, (date of expiration of the contract,) twelve months and twenty-five days, at five thousand dollars per month....... Total Amount. $21,000 72,000 95,666 66 64,166 66 $252,833 32 Upon the payment of the above sum of two hundred and fifty-two thousand eight hundred and thirty-three dollars and thirty-two cents, and upon provision being made by law for the speedy ascertainment, either by suit or arbitration, of the value of my private property seized by Governor Weller on the first of March, one thousand eight hundred and fiftyeight, and appropriated to the uses of the State, and for the payment to me of the amount so soon as it is ascertained, I will surrender the State prison, cancel the contract, deliver up all personal property belonging to the State, which I received from Gen. Estell and which is now in my hands, release all claims and demands against the State arising out of or connected with the contract, and against all officers of the State for any act done by them, and will procure the concurrence of Mr. Lloyd Tevis, one of the Assignees of Gen. Estell, in such surrender, cancellation, and release. As I have at the State prison a large quantity of bricks, supplies, and other personal property of my own, which it would be impossible for me to remove prior to the surrender of the prison, I should expect and re quire that provision be made by law to allow me a reasonable time after the surrender-say thirty days-for the removal of my property. It may not be inappropriate for me, in making this proposition, to add some explanation of the grounds upon which I base it." The original contract between the State and General Estell is no doubt well known to every member of your committee. It was made on the twenty-sixth of March, one thousand eight hundred and fifty-six. Immediately upon its execution, General Estell took possession of the State prison, and, until the fourteenth of May, one thousand eight hundred and fifty-seven, remained in the quiet and peaceable possession and enjoyment of all the property and rights purporting to be vested in him by that contract. During this period payments were made to General Estell under the contract; and, in pursuance of the obligations the contract imposed upon him, he not only supported the convicts, but made upon the State prison grounds, the property of the State, permanent and valuable improvements, to the amount of seventy thousand four hundred and twenty-six dollars and sixty cents. (See appendix to Senate journal, ninth session, reports of Joint Committee.) On the fourteenth of May, one thousand eight hundred and fifty-seven, I entered into an agreement with General Estell, by which, in consideration that I should receive each month five thousand dollars out of the ten thousand dollars to be paid to him by the State, I took upon myself the discharge of all his obligations under his contract with the State, for the whole term, less one month. I entered into this agreement with General Estell upon the faith and credit of the State of California, solemnly pledged by the act of the twenty-first of March, one thousand eight hundred and fifty-one, and by the written contract made in the name of the State by her officers duly authorized by that act. At that time the contract had been in existence for more than a year. It had not only been acquiesced in by the State and all branches of her government, but had been partially performed on both sides. No question had been raised as to its validity. I did not then imagine-nor had I any reason whatever to imagine-that the State would ever desire or attempt to do otherwise than religiously fulfill the obligations it imposed upon her. For the interest which I thus acquired, I paid General Estell a large sum of money. As sub-lessee I then took possession of the prison, and proceeded, to the best of my judgment and ability, to discharge the duties I had assumed. I continued in possession until first of March, one thousand eight hundred and fifty-eight. During that time I made permanent and valuable improvements on the State prison property to the amount of sixtynine thousand and thirty-three dollars and ninety-six cents. (See appendix to Senate journal, ninth session, report of Joint Committee.) And in the support of the prison, and in preparations for so applying the convict labor during the residue of the term, as to give me some adequate return for my outlay, I expended about fifty thousand dollars, over and above all that I have received from the State. From the time I entered until the twenty-ninth of December, one thousand eight hundred and fifty-seven, the State made payments, under the contract, at the rate of ten thousand dollars per month. But the payments were made irregularly and, with one or two exceptions, some time after they were due. The last payment was made on the twenty sixth of December, one thousand eight hundred and fifty-seven, and since then not a dollar has been paid under the contract nor towards the support of the prison while in my charge. On the first of March, one thousand eight hundred and fifty-eight, under a supposed authority of an Act of the Legislature, approved February twenty-sixth, one thousand eight hundred and fifty-eight, I was forcibly ejected from the State prison, and all my personal property seized and detained. It was appraised at seventy-nine thousand one hundred and fifty-nine dollars and eighty-three cents, by a committee of the Legis lature, acting in concert with Appraisers appointed by myself. (See appendix to Senate Journal ninth session, report of Joint Committee.) A portion of this property I was permitted to remove, not long afterwards, but in such a manner and under such circumstances that it was of little value to me. Another portion of it I recovered when, more than a year afterwards, I was restored to the possession of the prison by legal process. But a very large amount of it was either used for the State, or wasted and destroyed. No compensation has ever been made me, nor offered to be made, for this arbitrary seizure and confiscation of my prop erty, nor for the damage which I sustained in the breaking up of my business and the destruction of all my plans for future profit, to perfect which I had made such large expenditures. On the thirteenth of May, one thousand eight hundred and fifty-nine, after a protracted and expensive litigation, commencing in the court of a Justice of the Peace, and terminating in a judgment of the Supreme Court, I recovered the possession of the State prison and convict labor, and have since retained the possession. On the first of March next, there will be due under the contract for the keeping of the prison during the time I shall have actually supported the institution, the sum of one hundred and sixteen thousand six hundred and sixty-six dollars and sixty-six cents. The proposition I have submitted contemplates that this amount shall be paid in full, and it would be difficult to suggest a reason, founded in common justice, why it should not be paid. In addition to that sum, I ask that there shall be paid me for the time the State unlawfully held the prison, and for the term of the lease yet to run, the profit which I might have realized during the former period, and may reasonably hope to realize during the latter. That is, the sum of five thousand dollars per month, making one hundred and thirty-six thousand one hundred and sixty-six dollars and sixty-six cents. In strict law I should be entitled to demand and recover from the State the full amount of ten thousand dollars per month during the whole time. The State, in fact, paid the expenses of the prison. That is, from the first of March, one thousand eight hundred and fifty-eight, to the thirteenth of May, one thousand eight hundred and fifty-nine; because that payment was, as far as I am concerned, wrongful and unauthorized. Certainly the basis of the compromise which I offer, waiving, as I do, to a very considerable extent, my legal rights, is unobjectionable, unless it be the intention of the State altogether to repudiate her contract. My proposition is founded upon the assumption that the State will respect and consider herself bound by her contract. Upon any other assumption it is idle to talk of compromise. If I have no admitted right, there is no rule or standard to which to refer in any adjustment of my claims against the State; and I should stand in the position of one, not demanding justice, but beseeching a gratuity at the hands of the Legislature. That is a position which I do not occupy, and will not be made to occupy. I conceive that I am now demanding less than my due. But whatever I demand I ask of the justice, not the charity, nor even the liberality, of the Legislature. If it be denied me; if the State will not pay her honest debts, nor even adjust them upon a basis which would be fair in dealings between man and man, I may have no alternative left me but to resort to those means of redress which the law may furnish through the agency of the courts. If unsuccessful in that last appeal, I shall learn to submit with all the resignation of which I may be capable, to that ruin which will follow from a too great, and as the result will have proven, ill-founded confidence in the faith and honor of a Sovereign State. It has been suggested, and may again be urged, that the contract with General Estell was a disadvantageous one to the State, and therefore should not be considered as binding upon her. But on such a ground, would the State arrogate to herself the right of rescinding or repudiating her contract, a right which neither law, justice, nor reason, recognizes in any individual? And would the State do this to the injury and ruin only of innocent persons, who have dealt with the other contracting party upon the faith of her contract? It may be said further, that the State should not feel herself bound to fulfill this contract because it has been violated by me. Charges of this nature have been often made, but not in such a form, nor coming from such a quarter, as, in my judgment, to require any response from me. In regard to the manner in which the contract has been performed by me, I have always challenged, and I now challenge, investigation, confident as I am that its result will establish, beyond all question, that if in all respects the management of the State prison affairs has not been what might be desired, it has been the fault of the system adopted and sanctioned in this State by law, and usage, and by the contract, and not the consequence of the failure on my part to fulfill the stipulations of the contract. I had hoped that long before this time some opportunity would have been afforded me, in the course of a fair and public trial, to refute the unfounded accusations which have been made against me in this connection. It was with that view that I earnestly desired the passage by the last Legislature, of some law permitting me to bring an action against the State, and allowing the State to set up my imagined violations of the contract by way of defense. A reference to one of these accusations of the truth or falsity of which your committee have the necessary means of forming a correct opinion, will tend to show how little worthy of confidence are any of them. It has been published far and wide throughout this State, that I have failed to supply the convicts with proper food and clothing, and have subjected them to all the horrors of starvation and destitution in every form. Your committee have examined into the condition of the prison. You know how the convicts are now clothed and fed, and how their wants in every particular are supplied. While they have been in my charge their treatment has always been the same. Of this, too, you have had every opportunity to assure yourselves. I now confidently appeal to your committee for my vindication from all these accusations. Am I, or have I, at any time, been guilty of that gross inhumanity and cruelty which have been charged against me? For the purpose of showing our right to conclude a final settlement in this matter, it may be proper for me to refer to the instruments of writing under which Mr. Tevis and I claim to represent General Estell. |