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culties in securing the adoption of a good practice act is the fact that one influential legislator may defeat its best provisions; and not infrequently that one is present and is disposed to exert his influence. Every conceivable advantage to flow from a practice act would be available under the plenary authorization of the courts of last resort. These courts and the legal profession would be drawn into an even closer relation and the proposals from the profession would be accorded a more immediate and sympathetic reception by the courts than the law-makers can possibly find time or occasion to extend. I am informed that several states have already so empowered their courts of final resort and that others will soon have followed their lead. If the American Bar Association will lend its great influence to the promotion and the acceptance of this idea by the states that it has, in effect, already given to the proposal to likewise plenarily empower the Supreme Court of the United States in civil causes, we may be surprised how quickly all states will heed the appeal.
Given the time when Congress shall have plenarily empowered the Supreme Court to make and mold practice and procedure in all phases of the federal jurisdiction, and the time when the like power shall have been conferred upon the courts of last resort of the states, there will then have come into being governmental entities amply empowered to establish uniformityentities composed of men already thought to be worthy to bear and to discharge grave responsibilities and qualified to serve the purpose of the authorization.
According to a table that is thought to be practically accurate, the aggregate number of judges of state courts of last resort is 274. Adding these to the membership of the Supreme Court of the United States, the total number is 283. Of the judges of the states, 212 are elected by the people, a few by districts. The remaining 62 are either appointed outright or are subject to senatorial confirmation or are elected by legislatures. All of the judges who are elected by the people have terms varying from five to eight years. Pennsylvania is the state providing a twentyone years term, and she denies a second term. Twenty-five appointed judges of the state courts of last resort are commissioned during life or good behavior. The terms of those elected by the legislatures are generally for fixed terms, though there are exceptions. If thus empowered the men composing these courts of highest authority throughout the nation would have it in their power, and would undoubtedly have the disposition, to make and establish uniformity in practice and procedure. But they must, to accomplish that result, assemble and as an assembly inquire, investigate, deliberate, formulate and promulgate. It is here the American Bar Association could serve to bring into national assembly those fully empowered constituents of a national body predisposed to counsel together and to act for the welfare and advancement and advantage of the states and of the nation. Such a convention, presided over by the Chief Justice of the Supreme Court of the United States, surrounded by his associates on that greatest of courts, would be an assembly preeminently worthy of its occasion and of the great service it would be confidently expected to render. It would not be unwieldy in numbers. Its members would sit and serve with a sober consciousness of responsible authority and power and duty. To such an assembly every lawyer, judicial officer and layman who had aught to propose, or any criticism to offer, would be accorded ample opportunity and his views welcomed; for such a body would desire, and would take time and pains for, information and deliberation. It would be realized that the convention of such representatives of the nation's judiciary and of the state judiciaries marked a real epoch in our national life. It would be a body second to none in the importance of its opportunities, or in the hope it would hold out for the vindication and the preservation of the highest ideals with which all thoughtful, patriotic men are accustomed to contemplate the judiciaries of the country. In its voluntary assembly it would personify more perfectly than does even our Congress, the national sympathy, the national unity and the national, all-pervading spirit of helpfulness and vitalizing hope. Its conclusions and deliverances would be accepted and its approval or disapproval would decide. The result of its labors would confirm the hope for its permanency; and the American people, the legal profession and the judiciaries, national and state, would find therein such assurances of a deserved confidence in judicial administration as would awaken an abundant pride in every American heart.
The formal discussion was closed by a paper by Chief Justice William H. Gabbert of the Supreme Court of Colorado.
Practice and procedure are terms, the definitions of which are not uniform, but without attempting to define either, it will be assumed that when used in the conjunctive they embrace nothing more than rules for conducting judicial proceedings. Thus limited and confined to state courts, the subject under discussion presents two questions for consideration. First, Is uniformity in practice and procedure desirable? and second, If so, how can it best be secured? Most of the states have adopted civil codes, the object of which is to simplify common-law procedure. Owing to the inherent difficulty in codifying a system so complex as the law of procedure, many, if not all of these codes, have required frequent amendment and revision, despite which they have serious faults, with the result that the departure from the old system has not accomplished what was expected. For present purposes it is not necessary to undertake the task of pointing out the particular defects of the so-called code system. Those who have made a study of the subject assert that it causes undue delay in the administration of the law, the unnecessary expenditure of time and money in efforts to enforce just rights, and that more than onehalf of the cases reversed on appeal turn on questions in no way related to the real merits of the matters in dispute, but upon questions of procedure. The cause for this situation is easily explained.
The adoption of codes has been under exclusive legislative control. Legislators have prescribed the details for conducting litigation. They have been earnest and conscientious in providing rules for this purpose, but not being trained in the niceties of the law these rules are far from satisfactory. Trial courts are bound to observe them, even though they cause unnecessary delay, and are not in the interest of justice. They have been prescribed by the department of government which has authority to formulate them. If they are violated, reversible error is often committed and thus repeated trials of the same case causes delay and increases the expense which must be borne by litigants. In brief, it may be said that the rules of procedure generally prescribed in the various code systems have perpetuated many of the objectionable features of the common-law procedure which it was intended to avoid. It must, therefore, be patent, if we are correct in
assuming that faulty procedure is the radical defect of our system, it should be remedied, not merely for the sake of uniformity, but rather with the object of improving the method of conducting judicial proceedings. In other words, rules of procedure should be adopted which will enable trial courts to expeditiously and economically dispose of litigation on its merits, simplify the procedure on review by appellate courts, and yet fully present every question of merit involved.
The next question is, Shall courts or legislatures frame such rules? They should be formulated by experts, trained in the law, and hence, with the aid of the Bar, by the courts, if authority for this purpose can be conferred. It is exclusively a legislative function to prescribe the jurisdiction of courts, character of actions, who shall be the parties, and all matters regulating the general authority of the judicial department. How the courts shall perform the duties thus imposed is also a legislative function which, however, may be delegated if not exclusive.
There are many statutes creating boards and commissions whose duties and powers are prescribed and defined, but vesting them with authority to provide by rules the method of discharging their duties. Such statutes have been frequently attacked upon the ground that the power to make rules was a delegation of authority to legislate, which the fundamental law inhibited, but rarely with success. Under our system of government, the general authority of the courts, except as limited by constitutional provisions, is and should be under the exclusive control of the legislative department, but this does not include exclusive power to prescribe the details of conducting litigation. The latter is necessarily within the power of the courts to regulate, unless the legislative department elects to exercise it. Assuming that this premise is correct, the legislative department of each state should clothe its court of last resort with authority to frame rules of practice and procedure. Such rules must be limited to directing how judicial proceedings shall be conducted as distinguished from the jurisdiction and general authority prescribed by the legislative department. The latter does not thereby seemingly surrender any constitutional powers, but merely authorizes the judicial department to perform its duties by rules of procedure it is empowered to adopt, which will enable it to better discharge its
functions as one of the co-ordinate branches of the government. This plan offers an opportunity to remove in a great measure the faults of the civil code system, which, when thus supplemented, will aid trial and appellate courts to more expeditiously and economically discharge their judicial functions.
Colorado, at the instance of the State Bar Association of that state, has made a move in this direction. In 1913, the General Assembly adopted the following statute:
“ The Supreme Court shall prescribe rules of practice and procedure in all courts of record and may change or rescind the same. Such rules shall supersede any statute in conflict there- . with. Inferior courts of record may adopt rules not in conflict with such rules or with statute.”
By virtue of the authority conferred the supreme court prescribed rules of practice and procedure. As might be expected of the first venture into a new field, they are not entirely satisfactory to the Bar or court, and at the last meeting of the State Bar Association, its president was directed to appoint a committee to confer with the court on the subject of amending and possibly repealing some of the rules.
This serves to illustrate the facility with which rules adopted under such a statutory provision can be changed, if found impracticable or burdensome. Possibly it may be of interest to briefly call attention to some of the rules the court adopted under the authority conferred by the General Assembly.
It is sometimes difficult, even for counsel, to determine from the pleadings what the issues of fact may be, and thus time is taken in introducing evidence which may not be necessary. To meet this situation it was provided that when the issues of fact are not clearly defined by the pleadings, the parties before trial, on motion of either or by order of the court, may be required to prepare, sign and file a statement defining such issues.
Upon motion for a new trial, it may be made to appear that error occurred in the admission or rejection of testimony, or in the giving of instructions as to a fact in issue to the prejudice of the party filing such motion, but that all other issues were properly submitted to the jury. In these circumstances it was provided by rule, that upon motion for a new trial, the court may, when practicable, order a retrial of such questions of fact with respect to which it appears error was committed, without disturbing those