BANQUET PROCEEDINGS

(Martin Hotel, Thursday Evening, 7:30 O'Clock)

RESPONSES TO TOASTS

JUSTICE HORACE E. DEEMER, Toastmaster: Judges and Lawyers of the Iowa State Bar Association: This has been said to be a judges' convention, and you will rarely make a mistake in calling whoever you meet, "Judge." They are all either ex's or would-be's, or present judges, and the wonder of it is, when we look them over, how they ever came to be judges at all. Some of our friends are more surprised than we are about it ourselves. However, we have enough members who are really lawyers to have an organization in Iowa known as the Iowa State Bar Association.

I hope it is well with you lawyers, not as they tell of the Chicago lawyer, with whom business became a little dull, and who moved to Detroit. He met a Chicago friend who hadn't heard of his removal, who asked him: "How are you getting along?" He says: "Business was awfully dull in Chicago, so I concluded to take my witnesses and go to Detroit, and I have had pretty good success up there."

Speaking of witnesses, a pauper culprit came into court one time and the judge appointed counsel to defend him. As a sort of a joke he concluded to appoint two of the leading members of the bar to represent the defendant. They went over and consulted with their newly made client, and while thus consulting the judge overheard something about an alibi. Finally the lawyers leaned back in their chairs and looked as if it was a hopeless case. The judge said: "What is the matter, gentlemen?" The indicted said: "Judge, I wish you would let me trade one of these lawyers for a witness, I think I would get along better."

The last time I told the story I am about to relate I angered

a man who was present. But I see no one here from that county to-night. It happened down in Southwest Iowa. An impecunious culprit was brought into court, and the judge before appointing counsel asked the fellow the usual questions, and said: "Mr. Smith, here is an ex-attorney general of the State of Iowa, a good lawyer, at one time received his party's vote for the United States Senate; the next person to him is our State senator, and over here is a man who used to be county attorney, and there is another fellow out there in a side room, you look these men over and pick out the one you want." He looked over this one and that, and finally said: "Judge, I guess I will take the fellow out in the other room.

The judges, particularly the appellate judges, are getting along pretty well. We are reversing the usual number of cases, about forty per cent, and this reminds me of a story about a Nebraska judge who was being reversed quite often, but to whom there finally came an affirmance one day, and one of the lawyers who met him said: "Judge, I see the Supreme Court affirmed you yesterday, I congratulate you." "Well," the judge said, "notwithstanding, I still believe I was right."

We have had some leading cases in Iowa. They are not all in the book of selected cases. We had one with reference to a meteorite or aereolite, an original case, a leading case, the only case of its kind in this country; it is a leading case upon the subject, decided by the Supreme Court of Iowa. I have really forgotten whether the court decided that it belonged to the owner of the land, the tenant in possession, or the finder; at least, it decided the case-a leading one.

Then we have another leading case in Iowa, allowing railroad and other attorneys to have an injured plaintiff compulsorily examined to see whether she was really injured. We are going to have more leading cases now, because we have had another judge added by the last legislature. We would have added two or three more if it had not been that we forgot all about the Constitution. Judge Wade says it was all right anyway, since we passed four legislatures without adding any and there were four due at this time. But he always has a happy way of getting around the Constitution.

Of course, the last member added to the bench always writes the leading cases, especially for a few years. So we have the habit of first calling upon him who by precedent we denominate the "Infant of the Bench." We will call upon him for one of his master pieces, one of his leading cases. I refer to Justice W. S. Withrow, of Mt. Pleasant.

LEADING CASES

Gentlemen of the Bar: If I shall measure up to the cordial greeting just extended, which I hope I may take as an expression of good wishes upon entering into the larger work of the Courts of this State, I shall feel grateful. All that Judge Deemer has stated does not yet sufficiently explain the increase in membership of the Supreme Court, or its present personnel. I think something more is due you as members of the profession.

Years ago, when Colorado was a new State, a young man recently admitted to the bar began his practice in one of the outlying counties, and, of course, passed through all the troubles and vicissitudes of a young lawyer's life. Finally there came to him a client. The young lawyer procured a copy of the petition and examined it carefully. He concluded it failed to state a cause of action and thereupon filed a demurrer to it, which, out of an abundance of precaution, he verified. In due time the matter came on for hearing before the trial court and it was argued and submitted. Something in the expression of the judge as the papers were handed to him caused the young man to feel that perhaps some error had been committed. What it was he could not understand. Thereafter, at the first intermission, he inquired of the judge wherein he had erred. He was told of the situation and was mortified and chagrined, telling the judge that he was just beginning his practice, and if knowledge of that should come out, it would ruin his prospects. The court promised him, so far as he was concerned, it should not be referred to. In some way it became public. The people learned of it and it seemed to spread over the entire State. The voters took it up and nominated him to the Supreme Bench and elected him. They said they wanted one man there who could swear to the law.

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Now, that might be one explanation of the increase in membership, although it is not intended as a personal reflection upon any one. But the feeling, perhaps, of the people upon learning of the appointment which had been made for this is not an elective position which I am now filling-I think, may be aptly illustrated by the experience of Mr. Hooley, who came to this country as a young man. He first secured employment on the streets of New York City as a common laborer. As time passed, he became foreman and active in the politics of his ward. Larger opportunities opened as time passed on. He secured city contracts and acquired wealth, power, and influence. From the little home they had occupied in the tenement, his family had moved at different times, until finally they had taken up their residence in one of the fashionable districts of the city. All seemed well, and the future bright, with one exception. Mrs. Hooley was dissatisfied because she was not accorded the social position to which she felt they were entitled, and in a family conference they concluded what they desired would best be secured by forming an alliance with some active church organization. Considering the matter thoroughly, they determined to make application for membership in the Episcopal Church, and upon so doing, were told they would be received on the following Sunday. Mr. Hooley, in telling a friend about it, said that he had hoped the people were glad they came, but that he really had his doubts, "For," he said, "you know, when we went into the church on Sunday morning, the people all rose in their seats and commenced saying, 'Hooley, Hooley, Hooley, Lord God Almighty!'"'

All this is by way of preface to a short treatment of the subject assigned to me. A complete discussion of it is impracticable. In the brief time which may be given to the subject of leading cases, I may mention only by way of illustration and brief comment a few which are the high points in our jurisprudence, and which have marked epochs in the life of a people. Before noticing a few of the cases of the past hundred years or less which have had large influence in the real development of individual and public rights, may we advert to earlier decisions, some of which were no less important than are the leading cases of the

period of our constitutional history and others interesting because they are unique.

In the General Court of the New Haven Colony, sitting in 1640, one John Jenner was accused of being drunk with strong waters. Upon due hearing, as the record shows, he was acquitted, the court finding that "the weakness appeared to be of infirmity, and occasioned by the extremity of the cold." Argument is unnecessary to maintain that this decision was based, not upon the letter, but the spirit of the law. To the regret of many, in these later days, that decision does not stand as a leading case. But while there has been an apparent tendency to depart from that most sympathetic and humane decision, it is interesting to find that now and then some court so far applies literally the facts as to give expression to novel law. In this connection may be noted a decision of an Illinois court, in a proceeding to condemn certain intoxicating liquors, to-wit: bottled beer, found in the possession of one who had not the lawful right to keep and sell that commodity. The proof seemed clear, and condemnation and conviction certain. Before finally passing upon the matter the justice examined the impounded liquid, counted the bottles, and made a careful and expert test of the contents. Satisfied at last, he dismissed the proceedings with the ruling, that while the proof showed that there had been taken into possession by the officers a quantity of bottled beer, which evidently had been held for an unlawful purpose, yet the action must fail, as there were only twenty-three bottles, and it required two dozen to make a case. That should be a leading case. It settled a commercial question with mathematical precision.

From these illustrations of the law as sometimes applied, may we turn to others which affect private rights, personal liberty, and the public welfare. "Every man's house is his castle," is one of the great declarations of individual right. Secure as we are in our homes and in the sacred privacy which means so much to domestic life, and which is a source of power and strength to organized society, we accept almost as commonplace that rule of right which first had exhaustive discussion in LeMoyne's Case, reported in 5th Coke. The Court which rendered that great decision may not have had a prescience which could pierce the