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seven will be able to do it any better, sitting in one court, than the six sitting in two courts. I inquired of one of the judges of the Court of Appeals this morning and he tells me that they are now more than two years behind. I think we all know that. They are · falling behind steadily. The court is now only nine years old,
starting with nothing, and yet it is more than two years behind with its work. Now will a single court consisting of seven judges, although they may sit in departments, be sufficient to relieve the situation. This is needed more than anything else perhaps, and it strikes me that seven judges cannot do the work. We know that these men work as hard as any set of men can work. That the records in this state are different from what they are in almost any other state in the union. They are larger. The questions presented to the courts are different from those presented in any of the eastern or central sections of states. And while we are amending the constitution we should make provision for affording instant and constant relief to litigants when they bring their cases or have them brought here in the Court of Appeals or in the court of last resort. And I think we might make this more flexible by granting permission to the legislature to add from time to time such judges as may be necessary to keep abreast with the business. It seems to me the most serious question confronting the people of this state is the delay occasioned by the inability of our courts of appeal to discharge the business that is brought before them.
W. H. Bryant:
I can only state, judge, that we think that with this system the court will be able to keep up, but even if not we don't believe it is possible to add more than seven judges of the Supreme Court with any hope of having the bill pass. Of course, it is still within the province of the legislature to create another Court of Appeals if they should still fall behind, but I don't believe that any amendment with more than seven judges would ever be carried by the people of this state; and we put this provision in here of two or more departments for the special purpose of permitting the Supreme Court to let two judges pass upon small cases and let one
chief justice concur in it subject to the rules and regulations of the court. They can regulate those things to meet all cases that may come up, we thought, better than an act of the legislature or an amendment. There are so many cases that come up to the courts now that involve small amounts. One of the judges of the Court of Appeals told me that an entire term had been taken up with cases not one of which involved more than a hundred dollars. It seems to me the legislature ought to cut off appeals and writs of error in cases of that kind. It would be of great relief to the court.
The code provision as it formerly stood did not permit appeals in cases of less than a hundred dollars. They could take a writ of error but no appeal. Now, the Court of Appeals have construed the act establishing the Court of Appeals to allow appeals in all sorts of cases. It would cut off a great number of cases to go back to the old practice as to matters of appeals. Now the business of the Supreme Court as at present organized would be very much affected by that and in my judgment could be affected very much by rules of court as to what the record should consist of, and weeding so much out of a bill of exceptions, for instance, and cutting it down practically as the Federal Court practice, to bills of exceptions embracing the very points at issue, etc. There is too much cost to litigants, too. That is a matter that can be regulated by legislation or by rules of court. But this certainly will put the whole business of the state into one court, one court directing the whole proceedings, acting in three departments, cut off a large number of appeals, that is, all of these smaller ones that Mr. Bryant has talked about, and if some assistance is needed it should be met by legislation as to appeals, etc. Now it is doubtful whether you could justify a right of appeal by the amount involved. As I understand it, the new constitution of New York expressly says that the right of an appeal shall not be based upon the amount in controversy. There may be some legislation required to still further help out this matter as to the character of questions in which appeals can be taken, and all of that. But it
seems the organization of the court in this way is about the only device that anybody has been able to suggest that at all meets the situation.
Is there any objection to Mr. Burns' suggestion that the legislature have power to increase ?
No. Some of the states more conservative than ours have something of that kind. In Massachusetts the matter is entirely in control of the legislature. I think the legislature ought to be allowed from time to time to increase or decrease.
It would be almost impossible to carry a measure of that kind, to allow the Supreme Court to be run up and not any provision for decreasing it. We have got to have some bill with a practical side to it if we hope to carry it. We cannot make an ideal bill, which we would all like to have. But we are trying to make one that has a prospect of being carried. We will have to look to the future for the balance.
Henry F. May:
It seems to me if the legislature was at liberty to authorize additional judges, in the consideration of constitutional questions which are sure to arise, the legislature may add judges enough to change the complexion of the Supreme Court; for instance, if the "Eight Hour Law” had been decided by two judges and the other dissented, there would be two more judges added undoubtedly, who would be in sympathy with the views of the dissenting member.
Calvin E. Reed:
Mr. President, it seems to me that we ought to hear something from some one who is informed upon the matter as to the relative expense of the present system and the system contemplated in this
bill. Perhaps Judge Gabbert can give us approximately some estimate as to that matter.
W. H. Gabbert:
Well, Mr. Chairman, I have not investigated that matter very definitely, but I should say off-hand that the expense would not be increased. The salaries of the judges of the Court of Appeals are the same as of the judges of the Supreme Court; and while there would be one additional judge, which would be an additional expense of five thousand dollars a year to the people, there would be a decrease in the clerical force, if we had but one court, which I think would be about sufficient-I should say altogether sufficient —to cover that salary. For instance, we have two clerks now and two deputy clerks, two bailiffs where under this bill, with one court only, I should think that the clerical force perhaps would be, with the addition possibly of one deputy, or one bailiff, would be all that would be necessary. That is, if we had one court of seven judges. We have not in each court one clerk, one deputy and one bailiff. I should think one additional official, as a deputy, either as a bailiff or a clerk, would be all that would be necessary to care for the clerical business of the Supreme Court of seven judges. That, of course, would do away with the other clerks and assistants and officials of the Court of Appeals, so that the expense would practically be the same, in my judgment, under the proposed system as compared with what it is now under the two courts.
Henry F. May:
I move that this matter be submitted to the Association as to whether this bill shall be recommended. I suppose the motion should be that the report of the committee be adopted.
Motion seconded by Platt Rogers.
There is one matter I would like to mention in the nature of an objection to this bill, although I suppose the reasons in favor of its adoption in the minds of the committee are sufficient to overcome this objection, and that is that I think it would be much
more acceptable to the bar if the court en banc should pass on all cases.
The Court of Appeals of New York, the Supreme Court of Massachusetts and many other appellate tribunals of the most populous states of the union seem to dispose of the litigation of those states with the full court passing on every case that is decided. I am aware of the fact that the excess of cases is limited by wise legislation, restricting the character of cases which can go to the highest appellate tribunal. But it certainly adds weight and dignity to the court and satisfies the bar better if there is a court of seven judges and all the cases are passed upon by the entire tribunal. It occurs to me that in case there should be a department of three judges and there should be a dissent of
such case the entire court should consider the case originally. I know the committee would respond that it would be presumed that the court by its own rules would adopt such regulations as would meet such cases.
I suppose that is so, but the bill would be much more satisfactory to me at least, and that is the only objection I have to it, if we had some system whereby we could avoid these divisions or departments. I know that system prevails in California, and I know the members of the California bar with whom I am acquainted say that the system does not work with perfect harmony and is not as satisfactory to the bar as in states where the court consists of five or seven judges sitting en banc and all the cases have the consideration of the entire court. In some of the New England states, in Massachusetts and others, the bench consists I think now of seven judges, and not only disposes of all the appellate business but also hold nisi prius terms of general jurisdiction, and the judges are able to dispose of the entire business of that state, which is much more populous than this state, and all of the appellate business as well as the most of the nisi prius business, with a limitation of the number of cases and the limitation of the size of the records. st would occur to me that legislation might so reduce the bulky records and limit the kinds of appeal that it would be more satisfactory both to the bench and bar, reduce the expense of litigation, and the court of last resort consisting of seven judges ap