19

In judicial review, a few courts-chiefly in very modern times— have seen fit to test the procedure of taxing bodies by their observance of the jury-trial system of Evidence. And for sundry offi cials-civil service boards, licensing boards, county commissioners, and others-instances of like exercise of control are found,—also chiefly in very modern times.20

Wyo. Comp. St. 1920, § 699 (state land board).

19. FEDERAL: (1920) - Turner v. Wade U. S., 41 Sup. 27 (Ga. St. 1913, p. 123, providing for a mode of disputing tax assessments, held unconstitutional, because not requiring notice and hearing before assessment, although providing for notice and hearing afterwards before arbitrators; approving Central of Ga. v. Wright 207 U. S. 127);

MASSACHUSETTS: (1873) Farmington R. W. P. Co. v. County Com'rs 112 Mass. 206, 213 (county board; on certiorari, the review may include "an objection taken to the evidence for incompetency, so as to raise a legal question"); (1891) Haven v. County Com'rs 155 Mass. 467, 29 N. E. 1083 (county board erroneously received evidence of sales of other land; held that the use of the incompetent evidence required that the proceedings be quashed); NEBRASKA (1886) State ex rel. Goff v. County Board 20 Nebr. 595, 31 N. W. 117 (the board in reviewing assessments acted in part on their own knowledge of the premises; held that "the board is a judicial tribunal, and so far as possible must be governed by the rules relating to evidence"); (1907) Western Union Tel. Co. v. Dodge Co. 80 Nebr. 18, 113 N. W. 805 (county board of equalization received a computation of appellant's stock and bonds taken from "Poor's Manual and other standard publications"; held that "boards of equalization are not governed in their investigation of the values of taxable property by the strict rules of evidence applied by courts of law in the trial of ordinary cases");

NEW HAMPSHIRE: (1912) Boston & M. R. Co. v. State 76 N. H. 515, 85 Atl. 616 (tax commission; on appeal, "the same rules apply

in so far as the production of evidence is concerned, as in other judicial proceedings");

WISCONSIN: (1901) State ex rel. Giroux v. Lien 112 Wis. 282, 87 N. W. 1113 (city board of review of assessments; the reception of affidavits held error under a statute requiring such boards to "hear and examine any person," etc.).

20. CALIFORNIA: (1901) Stumpf v. Board of Supervisors 131 Cal. 364, 63 Pac. 663 (county board's decision on formation of a sanitary district; certain witnesses before the board were not sworn; held, "as the statute did not prescribe the character of the proof by which the questions should be determined, they must be established in accordance with the rules of evidence recognized by the courts and the common law"); (1918) Lanterman v. Anderson 36 Cal. App. 472, 172 Pac. 625 (state board of medical examiners' revocation of a license; rule about corroboration of accomplice held not applicable; "irregular method of procedure not going to the question of jurisdiction," said to be not reviewable on certiorari);

ILLINOIS (1884) People ex rel. Shepard v. Dental Examiners 110 Ill. 180 (under St. 1881, May 30, authorizing the state board of dental examiners to issue licenses on certain conditions, the decision of the board as to the facts is conclusive, being a judicial determination of facts, and mandamus will not lie);

IOWA: (1920) Fronsdahl v. Civil Service Commission 189 Ia. 1344, 179 N. W. 874 (discharge of police officer by chief of police sustained by city civil service commission; hearsay evidence is admissible; "it is not requisite that he should have before him competent evidence, in a technical sense, of the criminal guilt of a policeman in order to justify an order of removal; whether it would be competent in such a case for a civil service commission

On the whole, it would seem that the vast body of disputed claims and charges, dispatched monthly and yearly by these numerous cohorts of administrators in varied fields, manage to get adjudicated satisfactorily without enforcement by the courts of the jurytrial rules of Evidence. Whether this can be explained without impairing the credit of that system, could not be answered without an extensive inquiry into the practice at these various tribunals in the different states.

to sustain a discharge wholly upon hearsay evidence, we shall have no occasion to determine");

MINNESOTA: (1918) State ex rel. Burrows v. Truax 139 Minn. 313, 166 N. W. 339 (certiorari to county commissioners, reviewing an order to establish a ditch; the board had refused to swear the witnesses; held not fatal; "the county board is not a court; its proceedings . . . are necessarily informal; the members are usually not lawyers; they are not governed by legal rules of evidence; parties appear usually without attorneys"); (1919) State ex rel. Grubbs v. Schulz 142 Minn. 112, 171 N. W. 263 (revocation of teacher's license by state superintendent of education; the witnesses were not sworn; State v. Truax, supra, approved); MISSOURI: (1921) State ex rel. Johnson v. Clark 232 S. W. 1031 (plaintiff's license as a physician had been suspended for 5 years by the state board of health, under Rev. St. 1919, § 7336, after a full hearing on a charge of unlawfully causing an abortion; order quashed, because the board adImitted (1) the attendant physician's testimony to the woman's declaration naming the relator, made 36 hours before death, but not fulfilling the rule for dying declarations, (2) a physician's testimony to the relator's repute as an abortionist; unsound; two judges diss.);

Mo.

NEW YORK: (1920) Appeal of Bronx Parkway Commission, App. Div., 182 N. Y. Suppl. 760 (land-condemnation; the commissioners of appraisal are "untrammeled by any technical rules of evidence, and unrestricted as to their sources of evidence"); (1921) Martin v. O'Keefe, Sup. App. Div., 187 N. Y. Suppl. 153 (dismissal of policeman for insubordination in refusing to obey an order of the police commissioner as to wearing his uniform at the trial of the former on charges, with a view to identification; dismissal reversed on the ground that the trial was not fair); (1922) People ex rel. Packwood v. Riley N. Y., 133 N. E. 891 (city commissioner of public safety; rules of evidence applied to proceedings for discharge of chief of police); OKLAHOMA: (1920) Muskogee Gas & El. Co. v. State Okla., 186 Pac. 730 ("the strict rule applicable to law courts does not prevail in legislative proceedings"; said of corporate records, offered before a commission); RHODE ISLAND: (1921) Glass v. State Board R. I., 115 Atl. 244 (revoIcation of a motor vehicle license by state board of public roads; proof held insufficient; "the bulk of the testimony in this case was mere hearsay testiit must clearly appear that after excluding such testimony there is sufficient legal testmony to satisfy the requirement of proof by a fair preponderance of evidence”).

mony;

RECONSTRUCTING THE JUDICIARY: THE

NEW DRAFT CONSTITUTION

AND THE COURTS

BY ANDREW R. SHERRIFF

The long looked for developments in our systems of judicature seem to have actually started. The clamor for improvement and reform which arose in the American Bar Association about fifteen years ago, growing more widespread and insistent ever since, has now reached the stage of attaining concrete results.

In the course of progress, the movement has attracted many strong participants. More conspicuous among them have been the American Judicature Society, the National Economic League, the Phi Delta Phi Club of New York City, and special committees of important bar associations in all parts of the country. Abundant literature has accumulated meanwhile on the subject of the necessity for thorough reorganization of the systems of courts.

In all this discussion there has been rather scant reference to broad principles. It is still the disposition of our people to see things as they are, in their visible forms and actions, without speaking much of the spirit; and in this the members of the bar may also be said to be rather reticent in these latter days, about their traditional part as interpreters of principles in public affairs. In somewhat the same aspect as we are wont to regard the regulation of beverages and other measures from the standpoint of personal convenience, we are also apt to view the administration of justice merely as a means of service to the individual citizen, without much consideration of it as a universal function. The discussion has been mostly in voicing complaints of deficiencies, and making proposals for practical changes in the machinery of justice, with relatively little utterance of the underlying political principles to be better safeguarded or the broader purposes to be achieved.

In working out the structure of our constitutional plan of government, the development of the judiciary as a composite, organized, self-regulated department has been very slow. Conceding that it has shown enough form and action to prove the soundness and superiority of the whole tripartite scheme, yet it must also be conceded that it fails to sustain the necessary operative efficiency to

carry off the current of demands made on it, and that it has not yet acquired its full theoretical stature.

It was sagely observed by Montesquieu, as has been perceived, of course, by countless others, that the spirit of a republic can live and prosper only in being nourished by the virtue of its citizens. A large part of this virtue consists in public morality, the general habit of fair dealing, the common exercise of justice. This in fact is so necessary for the regulation and continuity of collective existence, that one of the purposes for which the constitution declares our nation was founded was to establish justice; and on reflection it appears that this is the main purpose, that all other purposes are, or ought to be, attributive to this central principle.

The judiciary department, the system of courts, is the constitutional assurance that justice will be duly made to flow among the individual citizens where they are unable to promote it between themselves. It is the circulatory system for this vital fluid of the nation; the safeguard against the political poisons generated by injustice.

In the early years of the republic, when rural life and agricultural pursuits engaged the large majority of the sparse population, and the few courts were constituted of judges chosen by the appointive powers for their learning and special fitness for the bench, the then judiciary department-consisting of individual courts, peripatetic, set up temporarily where needed-was adequate for the demands made upon it, and in the course of its operation it established a record of distinguished learning and judicial philosophy.

But the times and customs changed. After the civil war the people turned from farming to manufacturing and commerce in the cities, where augmented by millions of immigrants they built up vast urban communities. The judicial facilities were necessarily increased; the individual judges and courts were added to by more judges, all together composing a nominal organization, but without the provision of any structural or administrative scheme. As need for more and different kinds of instrumentalities arose, the legislatures have created more and different kinds of courts, still with no scheme, plan, or supervisory regulation; so that as they now exist in our large cities they are well described as merely a congeries of courts, of separate and often conflicting jurisdictions. Throughout the rural districts they still remain individual courts, speaking with individual authority, and with little coherence to any defined or centralized organization.

The control of practice and procedure in the courts has been retained by the legislatures. This is a traditional incongruity in our scheme of government consisting of the three independent departments; a substantial intrusion of the legislative on the judicial. Perhaps it could not well have been otherwise while the courts have lacked sufficient organic structure to govern and regulate themselves; nevertheless, it has been a serious hindrance to the due administration of justice and to the normal development of the judiciary.

Meanwhile the appointive method for the selection of judges has been generally abandoned in the course of our experiments in the art of government, and the benches are now occupied mostly by the products of the inexpert and unknowing popular vote. As well might we elect the physicians and surgeons of our public hospitals. The natural result of this too democratic procedure is, that in many instances, it is mediocrity that today invades the bench in our populous centers.

Adding to these inherent conditions of the courts the enormous increase in the volume of matters imposed on them for litigation, it is not to be wondered at that they are overwhelmed, or that their work is found to be inadequate.

Was it a truth, or a cynicism, which a well known lawyer of wide experience recently uttered, when he remarked that the courts of today, so far from being dependable agencies for the dispensation of justice, are more like mills for wearing litigants into submission? Whichever it was, we know that the dissatisfaction of the bar and the public with the courts has become so pronounced, that radical improvements are frankly and firmly insisted upon on frequent occasions.

The pressure for change has naturally focused during recent years on the several state constitutional conventions. The methods of remedy most urgently recommended to them have been, concretely, these:

1. The unified state court: that the whole judicial power of each state should be reposed in one great court, of which all tribunals should be branches or divisions, constituting the judicial department of the state; that this court should be presided over by a chief justice, or minister of justice, aided by a council composed of the presiding judges of divisions, in which chief justice and council should be placed the administrative control of the whole court; that legislative interference should be relieved, and the proceedings of the court expedited, by vesting the power to