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Resolved, That during the absence of Mr. Buchanan, the Secretary of the Executive Committee, the same power and authority to indorse and audit the bills of the Association, confererd upon him, be vested in Mr. William P. Rudd, of Albany, a member of the Executive Committee from the Third District, and that he be and hereby is appointed temporary Secretary of the Executive Committee."

The resolution was adopted.

J. Newton Fiero, of Albany:

I want to call attention to something that has struck me during several meetings of the Association, and I think can only be met by a resolution. We have fallen into the habit, and, perhaps, properly so, of giving a vote of thanks to every member of the Association who reads a paper. In very many bodies of this kind there is a by-law which prohibits that. It seems to me the sense. of the Association will be that every member does his duty by reading a paper. We are very much pleased with the papers at all times. I make the suggestion at this time, when it has no reference to any papers which have been read. In order that our minutes may not show a resolution of that kind, or that by some omission on the part of the members to move a resolution of that kind after a paper has been read, I want to offer the following:

Resolved, That it is the sense of the Association that no vote of thanks or expression of approval should be given to any paper read by a member of the Association.

I do it simply to expedite business and that we shall all stand on an even footing.

The resolution was duly adopted.

The President:

We will proceed with the order of the day.

The Secretary:

Mr. President, I have a paper prepared by Mr. James McC. Mitchell, of Buffalo, on the subject of "Legislative and Judicial Desiderata." Mr. Mitchell is, unfortunately unable to attend our meeting this year, and I take pleasure in offering his paper and move it be printed. in the minutes of the proceedings.

The motion was duly seconded and carried.

LEGISLATIVE AND JUDICIAL DESIDERATA. It would not be difficult to present to this Association a paper exemplifying the evolution of a particular legal principle or tracing a judicial sequence through the examination of authorities germane to a specialized topic. It is, however, possibly more profitable to deal with certain generalities in the professional field, apparent from the altitude of the viewpoint which the reputation of this Association affords, than to subject an abstruse theme to a microscopic analysis.

There can be no doubt respecting the marked divergence in the views which obtain among the members of the profession in relation to legislative and judicial reforms. Opinions differ as to the ends to be attained, and even more widely regarding the means to those ends. There is the further question as to the relative importance of reforms concededly desirable. The consummation to be wished is the classification of legislative and judicial desiderata in a cathedratic fashion by some such body of men as compose this organization, that the profession and the people and the people's representatives may direct their endeavors concertedly to the accomplishment of the results thus authoritatively pronounced desirable. It is not supposed that the ends to be attained can be

categorically stated and indorsed by a majority vote, but it is believed that a discriminative discussion of the more important needs to be classed in such a category cannot but serve to awaken the professional and public consciousness to an appreciation of the limitations of existing conditions. The purpose of this paper is, briefly, to indicate some things undone which ought to be done, as well as some things done which ought to be undone.

We may postulate in limine the desirability of increasing the requirements for admission to the Bar, with a view to attaining a higher standard of proficiency in the profession than is now possible. Professor Fiske has attributed the primacy of the genus homo to the prolonged duration of infancy and the concomitant increase of the brain surface. It might by an analogous course of reasoning be urged that the prolonged duration of the period of professional preparation and the concomitant expansion of the legal horizon would, in like manner, make for the ascendancy of the attorney. It is not necessary to further emphasize this desideratum, in view of the forceful and elaborate treatment it received in the address delivered by the President of this Association at its last annual meeting.

Passing then from men to things, and assuming that we have as data an exemplary Bench and Bar, what should such a Bench and such a Bar strive now to rectify or remedy in the legislative and judicial conditions which confront them in the respective fields of their activities? We must first differentiate legislative and judicial conditions. No analysis of our governmental system has yet with certainty defined the legislative or the judicial function. There is probably no more nebulous realm in the law than that marked by those decisions which assume to establish a bound, constitutionally implied but

not expressed, which the legislative power may not pass over. Theoretically, sovereignty is resident in the people and finds visible expression in a constitution, which ordains a government as an agency to effectuate the sovereign will. This agency possesses three great substantive powers, the power to declare the law, the power to apply the law and the power to enforce the law. No constitution, so far as we are aware, attempts accurately to delimit the legislative and judicial departments. The respective powers are confided in our constitutions to certain bodies, the legislative to a representative body, commonly bicameral; the judicial to certain designated courts of justice, but the powers themselves remain undefined, if not indefinable. It is not proposed to attempt the definitions here, but it may be suggested that, in theory at least, the legislature declares or makes the law at the instance of the community, while the judiciary applies the law at the instance of the individual. It would therefore seem that a statute which vouchsafed to the individual a mode or manner of the application of the law was not strictly a legislative act, while a court's declaration of the law in the communal interest was obversely non-judicial. Codes of procedure are justified as legislative acts on the ground that the individual for whose benefit and, therefore, at whose instance they are enacted, is the symbol of the community and not a private component thereof. Judicial declarations of the law are justified by the test of constitutionality or the fiction of the possession of a body of law applicable to every imaginable case. We do not mean to infer that codes of procedure are in any sense unconstitutional, nor that a statutory standard to insure uniformity in practice is not legitimate and desirable. Neither do we assert that specific judicial declarations of the law, predicated on con

stitutional implications or discovered in the imaginary depths of the common law, are uniformly unjustifiable. The illustrations are given merely to indicate the lines along which each power tends to trench upon the rightful province of the other. If there were in practice, as there is in theory, a law discoverable, intelligible and applicable to every case, the function of the court would be reduced to applying this clear legal solvent to the disputed facts before it. But where it is necessary to explore a statutory wilderness to discover enactments of possible application to the case at bar and then resort to an historical and comparative analysis of the same to extract their actual meaning, which must be applied in conformity to a technical and inflexible statutory standard, the theoretical beauty of the correlation of the legislative and judicial systems is lost to the litigant, at least.

The dominant characteristic of the science of law at the present day is, undoubtedly, the invasion of its every realm by statutory enactment. The essentially fallacious. notion that a remedy for a given condition can always be found in a legislative fiat has gained a remarkable prevalence. The Legislature is constituted the vocal organ of sovereignty. It is condign that it should express the people's will and subject the minority to the majority's rule, but the founders of this government, doubtless never conceived that this organ would become so voluminously voiceful as to give vent to its expression of the sovereign will in tens of thousands of pages of inarticulate and often incoherent declarations.

As an illustration of the present conception of the legislative and judicial functions in our government, it is interesting to note the passage in the Governor's last message, wherein the Executive formally notifies the Legislature that the judiciary has pronounced a statute