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individuals and organizations interested in the progress of the law. Your committee has, therefore, not limited the review herewith submitted to statutes of particular importance to lawyers but has included a large number of other statutes relating to current sociological, economic and governmental problems.
Individuals and organizations interested in reforms through legislation are apt to look to an association of lawyers for the interpretation of the scope and importance of current statutory changes in the law. Other than the Association's review, we have in this country no comparative summary of our legislation. The Association’s Bureau of Comparative Law confines its work to foreign law. The English Society of Comparative Legislation publishes a Journal of Comparative Law in which a very brief space has heretofore been devoted to legislation in the United States. We have several reviews of particular fields of legislation, as for example, labor laws, insurance laws, and tax laws, but none which deals with matters of greater interest to the lawyer, as for example, judicial organization and procedure, codification or amendment of common law principles, etc.
In the preparation of the review of this year's legislation (Appendix A) your committee has assumed that its duties were limited to an interpretation necessarily brief and general, but we trust accurate, of the nature and effect of the most important general laws enacted by Congress and the state legislatures. We have tried to make for the practicing lawyer and the student a record of the progress of the law by legislation.
Instead of assembling the statutes by states, we have endeavored to classify them by subject matter on the theory that readers will be interested in what was done in all the states on a particular subject rather than in a particular state on all subjects. We have, however, in every instance, indicated the state in which a statute noted was enacted and wherever possible, have cited the chapter or page. Numbers appearing in parenthesis after the name of the state without any explanation are chapter numbers. Pages or numbers are given only where there are no chapter numbers.
A few of the statutes noted in the review deserve special mention. Practice acts in Pennsylvania, Michigan and Vermont are significant in that while modifying and simplifying existing procedure and departing from the strict procedure of the common
law, none of them adopts the code system. Nor is either of them as radical as the New Jersey Practice Act of 1912 which places entire control of procedure in the hands of the courts themselves. The New Jersey Chancery Act of 1915 does much the same thing for the chancery courts as the act of 1912 did for the law courts. Unquestionably the tendency of procedure reform is to take the whole question of procedure out of the field of legislation and put it into the hands of the courts and the Bar to be exercised through a system of rules of court judicially adopted.
Another significant provision is contained in the Michigan, Minnesota and Wyoming acts allowing judgment to be entered in favor of the party who, on the record, appears entitled thereto, notwithstanding a verdict for the other party. The advantage of this system, of course, is that it obviates the necessity for a new trial where it is clear on the facts what the result of such a trial would be. This practice has been upheld by the courts of six or seven states, although excluded from the federal courts by the decision in the Slocum case two years ago. In the discussion which has followed that decision, the best opinion of the American Bar seems inclined to agree with the view taken by the minority of the court. Not only have these statutes adopted the practice condemned in the Slocum case, but there is noticeable, particularly in a Massachusetts act, an effort to overcome the constitutional objection raised by the United States Supreme Court.
The relation of the federal government to the states is involved in acts of Congress more important than they might appear on first notice. One of them, adopting in modified form the recommendation of a committee of this Association made two years ago, authorizes the Supreme Court of the United States to review on certiorari decisions of the supreme courts of the states holding state statutes unconstitutional because of conflict with the constitutions, treaties or laws of the United States. Heretofore there has been no review of such decisions because the statute having been declared unconstitutional, and therefore unenforceable in the state courts, no one was deprived of any rights which he might ask the United States courts to vindicate. In a few instances at least the effect was lack of uniformity in the several states. One supreme court might hold a workmen's compensation law contrary to due process under the 14th amendment and therefore
unconstitutional, while another state court might hold similar legislation consistent with the due process requirement and constitutional. It may be that the importance of this possibility was exaggerated but the change undoubtedly removes one of the causes of persistent criticism of the exercise of judicial power to declare statutes unconstitutional. The act may, however, have an increased importance if the movement to amend or limit the due process clause in the state constitutions progresses. In that event much of the police legislation whose constitutionality depends on the due process clause will, if declared unconstitutional in the state courts, involve the 14th amendment and permit of a review by the United States Supreme Court. This is the result aimed at by proponents of progressive legislation who believe the Supreme Court more sympathetic with their views than many of the state supreme courts.
Other acts of Congress illustrate an important movement for an extension of the federal power. Lawyers in and out of Congress have been debating the constitutionality of extending the federal power under the commerce clause by excluding articles from such commerce. Indeed, the House passed at the last session the Child Labor Bill excluding from interstate commerce articles which are the products of child labor. Little attention, however, has been given to an equally important method of extending the regulatory power of Congress. The federal taxing power has always been held to include the power to destroy. Until recent years, however, it has seldom been used as an indirect method of regulating local matters. A few years ago an act of Congress put a prohibitive tax on poisonous phosphorous matches, thereby destroying the industry purporting to be taxed. Of course, no revenue can be derived from this tax because it is unprofitable to manufacture the poisonous match and pay the tax. The only effect of the act was to prevent an occupational disease, the direct regulation of which would have required state rather than federal action. At its last session, Congress passed two similar acts. One known as the “ Cotton Futures Act” sets up standards for contracts for future
· Held unconstitutional by Judge Hough in the U. S. Dist. Court, N. Y., on Oct. 13th, because it originated in the Senate, contrary to the Constitutional requirement that revenue bills originate in the House.
delivery of cotton and puts a prohibitive tax on contracts which do not conform to these standards. The other regulating dealing in opium puts a tax on dealers, and on the tax and its collection founds a system of regulation of the business. However desirable the results effected by the use of the federal taxing power in these particular instances it is easy to see its possible consequences in disturbing the balance of state and federal powers provided by the Constitution.
In most instances the preparation of the review has involved a page by page search of session laws. In some instances the committee has had the benefit of carefully prepared summaries and estimates by the Association's local vice-presidents of important legislation in their respective states. Unfortunately, this has been the exception rather than the rule. It is obviously a difficult task to secure copies of current statutes early enough in the year of their enactment to permit of a search of their pages and a careful estimate of the scope and effect of the general enactments in time to present the results to the Association early in August. The only way in which a useful review can be prepared without too much burden on those who undertake it is by co-operation of local legislators or members or officers of the Association, with a committee whose responsibility is to see the review completed. The committee has not been able this year to make such arrangements for keeping in touch with legislation during the legislative sessions. We believe, however, that it is possible, without unreasonable effort, to gather, as the session progresses and have ready shortly after its termination, an accurate estimate of the general laws enacted. We believe that the Association should continue a committee for this purpose because the progress of the law, by legislative change, is of great interest and value to the practising lawyers and the law teachers in the membership of the Association, and we believe that à careful interpretation of the effect and the tendencies of current legislation to the layman is an important duty of an association of lawyers.
THOMAS I. PARKINSON, Chairman,
1. Federal Courts. Two important acts, relating to this subject, were passed by the third session of the 63d Congress. Chapter 90, recommended by the American Bar Association, provides that if a suit at law is brought in equity or vice versa the court shall order the necessary ameridments and the case shall proceed as if rightly brought, and testimony if preserved shall stand. The act also permits equitable defences in actions at law. Its importance will be realized when it is remembered that heretofore law and equity have always been kept entirely separate and distinct in the federal courts. This act also permits in district courts amendments of defective allegations of diverse citizenship if such diverse citizenship in fact existed at the time the suit was brought or removed from the state court.
Chapter 2 provides that the Supreme Court may require by certiorari or otherwise any case to be certified from the highest court of a state for review and determination with the same power and authority as if carried up by appeal or writ of error, although the decision was in favor of the validity of a treaty or statute or authority exercised under the United States, or against the validity of a state statute or authority claimed to be repugnant to the Constitution, treaties or laws of the United States, or in favor of a title, right, privilege or immunity, claimed under the Constitution, or a treaty, statute, commission or authority of the United States.
2. General Practice Acts. Important practice acts were passed in Pennsylvania (202), Michigan (314) and Vermont (90). The Pennsylvania act was drafted by a committee of the State Bar Association, while the Michigan and Vermont acts were the work of commissions appointed for that purpose. To simplify procedure and expedite the final determination of a case is the common purpose of these acts. None of them adopts the principles of code pleading, but each is