OFFICIAL REPORT
—OF THE -
PROCEEDINGS AND DEBATES
—IN THE—
CONVENTION
ASSEMBLED AT FRANKFORT, ON THE EIGHTH DAY OF SEPTEMBER, 1890, TO ADOPT, AMEND OR CHANGE THE
CONSTITUTION
—OF THE—
STATE OF KENTUCKY.
FRANKFORT, KY.:
E. Polk Johnson, Printer to the Convention.
1890.
VOLUME III.OFFICERS OF THE CONVENTION
PRESIDENT,
CASSIUS M. CLAY, JR., Bourbon County.
SECRETARIES,
THOMAS G. POORE, Secretary, Hickman County.
JAMES B. MARTIN, Assistant Secretary, Barren county. JAMES E. STONE, Reading Clerk, Breckinridge county.
REPORTER,
CLARENCE E. WALKER, City of Louisville.
SERGEANT-AT-ARMS,
ROBERT TYLER, Bullitt county.
JANITOR,
TODD HALL, Clark County.
DOOR-KEEPER.
RICHARD T. HALEY, City of Louisville.3030
THE JUDIC1AKY.
"Wednesday,] McChord—Bronston—Pugh—Hendrick. [January 28.
ried, and the Convention thereupon adjourned. .
■ . ' Wednesday, January 28, 1891.
The Convention was called to order hy the President, and the proceedings. pened with prayer hy the Rev. Mr. Penick.
The . Journal of yesterday’s proceedings was read and approved.
Leave of Absence. ,
Leave of absence was granted the Dele­gate from Simpson. ,
The PRESIDENT. Petitions are in order. Reports from Standing Committees are in order. Reports from Special Com­mittees. Motions and resolutions are in order.
Substitute for Report of Committee on Cir- euit Courts. . .
Mr. McCHORD. I would like to offer a substitute for the report of the Committee on Circuit Courts. I do not desire to have it read.
Mr. BRONSTON. I have examined, to some extent, the report which was offered by the gentleman, and I feel it-is just to the Convention to have it printed. I, therefore, move that 200 copies be printed •and laid on the desks of the mem­bers. : ■
A vote being taken, the motion of the Delegate from Lexington was car­ried.
Mr. PUGH. I move the Convention now resolve itself into Committee of the Whole for the further consideration of the report of the Committee on Appellate Court.
A vote being taken, the motion was car­ried,
and the President designated Mr. Zack Phelps as Chairman of the
COMMITTEE OF THE WHOLE.
Mr. HENDRICK. I simply want one moment, for the purpose of saying that, on yesterday afternoon, in the course of de­bate, referring to the system of Mississippi, I quoted the language of a friend of mine, a member of the bar of Natchez, Missis-, sippi, to the effect that Mississippi had re­tained the elective system. I am reliably informed that that is a mistake, and that they have returned to the appointive sys­tem. We, of course, understand why, with their ignorant vote, the change was desir­able. . ■ . : \ , .
' Mr. BRONSTON. When we reached • the consideration of the report of the Joint Judiciary Committee, I, for one, felt that, although a member of that Joint Commit- teo, so much had been spoken and so much had been written on the subject of the Ju­diciary of Kentucky, and what would be best for this Convention to do, that I was willing; without discussion and without de­bate, to allow each member of this Conven­tion to express by his vote his preference for any particular system; but finding the report which has been offered by the Joint Judiciary Committee laid upon the table of each Delegate, that the Chairman of the Joint Judiciary Committee refusing to give it his approval, with almost the entire Com­mittee of the Court of Appeals proper an­tagonizing that report, I felt that it was but just to the other members of the Joint Judiciary Committee who have approved this report, that we should at least give the reasons which actuated us in coming to that conclusion.
I shall address myself this morning simply and solely to what I believe tp be the gist of the difference between the two systems proposed. As to the mere matters of detail, that can be considered as we re­view this report, or these reports, section by%
"Wednesday,]
THE JUDICIARY, 3031
Bkonstost.
[January 28.
section. The main question is' this : Shall we have one Court of Appeals, or shall we have two? Asa supporter of the single Court system, I do not propose to be driven by the eloquence of the gentleman who ad­dressed you on yesterday afternoon into a position of criticism or antagonism of either the Appellate or Superior Court. I was charmed by his eloquence; I was pleased by the thoroughness of research that his address on yesterday afternoon in­dicated. I felt proud of him as a friend, and as a Kentuckian ; and I felt then, as I feel now, that I would hail' with delight the time when he shall be more closely identified with those gentlemen who grace the bench as one of our chief Judicial officials. ' • •
I agree with him in every thing he said in commendation of that Court as to its intelligence, ability and earnestness; but ! failed to hear a single reason given by him as to why you should have two Courts instead of one. If they have dispatched business more rapidly than any of the other Courts • of the country, I failed to hear him give any reason as to why the same men, with the same degree of in­dustry and intelligence, if you combine them, would not dispatch business just as rapidly. Accepting all he said in the way of commendation of the Court, let us address ourselves to the main points of difference.
’The gentleman who was Chairman of the Committee suggested the only reason that I have ever yet heard suggested as to why the present system should be retained. It was argued in the Joint Committee, as it has been argued here, that there might possibly arise a conflict of opinion between the two sections of the Court. That is all "the objection that has ever been urged. You answer the objection that we make by saying you have an intermediate Court, whose opinions are without authority; who announced no principle; who decided a cause, and that decision is mandatory upon
the Circuit Court, and yet it is without authority in any other case. You under­take to obviate that objection by saying that no longer shall that Court grant ap­peals from its own decision, but that the Court of Appeals itself, under this report, shall grant it. I shall address myself to those two points.
In the first place, Isay that there can be no possible conflict of opinion if you have the one'Court. The very thing that we claim for this majority report is, that we have provided a means by which you will avoid any conflict of opinion. Now, mark you, this report provides that this one Appel­late Court shall be composed of seven Judges; that one of those shall be Chief Justice; that it shall be divided into two divisions of three Judges each; that they shall sit on alternate days; that each . division shall be presided over by the Chief Justice; that the Chief Justice shall take no part in the decision of a cause by a division, not by the whole Court; but that he shall preside over each division, and shall hear each cause. Then, as the gen­tleman suggested, if division A decides a cause to-day, and division B decides the same principle to-morrow, if there should be a conflict, what provision have we made? 'This majority report provides that a petition for a rehearing shall be ad­dressed; not to the division which decided the question ; not to the Judge that has rendered his learned opinion, who would pigeon-hole, as it were, the petition for re­hearing; but it shall be addressed to the Chief Justice, who has taken no part in that decision. And can any man deny that that Chief Justice, who presides as arbiter, when he hears the petition for rehearing in section A and B, that he would not see at once there was a conflict of opinion ? How is that remedied? It is remedied by a provision that the Chief Jus- . tice, on an application for rehearing, if he sees proper to grant it, then he shall call the whole Court together, both sections,
\'3032 THE JUDICIARY
Broistston. Wednesday,] [January 28.
and he shall submit the question to he re­heard to the whole Court, and it requires the Chief Justice and three of that Court to determine that question. Now, does not that avoid any conflict? Is not that the only way you could prevent a conflict of opinion ? Is it not the fairest way? Those of us who are lawyers on this floor know if there is any fault that could be found with the present system, it is a fault that attaches itself not to, the J udges "but to the system •, it is that peti­tions for rehearing under our present sys­tem amount absolutely to a farce. You have your case decided or heard by either the Superior Court or the Court of Ap­peals, and when you offer a petition for re­hearing you feel yourself at the time that you are writing that petition that is abso­lutely of no avail. Why ? Because it is referred to the very Judge who decided the case, and it depends on whether he has time and patience to review the case. So, under this system which we now provide, we give the litigants the opportunity, if there are great questions involved, of hav­ing the petition for rehearing presented to one who has not become prejudiced, by reason of writing an opinion in the case, to review it, and to review it calmly and im­partially. You understand how hard it is to get a man, be he learned or unlearned, when he has not only formed an opinion, but when be has expressed that opinion, and expressed it with formality and dig­nity, you know how hard it is to get him to reverse it. You know.that when you pre­sent your new argument to him, the conflict that goes on in his mind is to argue away your reasons and support his own. There­fore, we have provided that you will get away from that difficulty, and, by having the Chief Justice, who has taken no part in that decision, to review carefully the pe­tition for rehearing, and if he comes to the conclusion that an error has been com­mitted, he does not submit the case to the division which has made that error, but he
calls-the other division, and the two sitting together, should there be a conflict, he, as Chief Justice, will, as the arbiter, determine the question. Could there be any fairer system ? There is no difficulty under the present system. I speak alone of the sys­tem. The Judges could not overcome it however able and conscientious they may be. We understand, however important, a case may be, when submitted to the Ap­pellate Court or the Superior Court for its decision, one of the Judges takes the record and examines it. After making that ex­amination, and coming to a conclusion, he writes an opinion. They hold a consulta­tion, and that Judge states to his associates the facts in that record. He gives them his conclusions, however biased or preju­diced it may be, and upon his statement of the facts, and upon his citation of authori­ties, and upon his conclusion of the law, that Court concurs in the opinion; so that however many thousand dollars may be involved, or however sacred the rights may be,- you have one Court and one J udge .deciding the question, and that is upon a casual review they have to make of those numerous and large records. Is that just to the litigants of Kentucky? Is it not because of the fact that you have heard hundreds of men say they would infinitely prefer to trust the Circuit or Common Pleas Judges, who preside in the lower Courts, rather than to have it go to the Court of Appeals, and rust on the shelf for many months, and then be decided by one Judge. We have provided that no opinion can be rendered by either division, except upon the concurrence of three Judges of the division, and we have provided further in this report that the Legislature may prescribe rules, fixing those rules according to emergencies of the times by which those opinions are, and, in my opinion, the emergency of the present time demands that each one of those Judges shall certify that he has read the record, and, having read the record andTHE JUDICIARY. 3088
W ednesday,] Bkonstoist. [January 28,
examined it, that all .three concurred in the ,-opinion written. Of course, we do not want to fix any hide-bound rule as that, •because the time may come when that may •not be necessary. Therefore, that question has been left open to the Legislature and the'Courts; but we have guarded against •that by providing that three Judges must concur in the opinion before it becomes a •law. "We have.tried to guard against the two great faults that have been found by the bar of Kentucky. One is, that in your •petition for rehearing, you appeal from Philip drunk to Philip sober. The same man passes on the petition, for rehearing •who decided the case. We get away from •that by saying that the division which ren­dered the opinion shall have nothing to do with passing on the petition for re­hearing, but it shall be done by the Chief Justice, and if he believes the petition for -rehearing should be granted, he calls the other division, and the whole Court will •pass on the question. Ah, you say the ■Chief Justice is a sinecure! I am amazed at •so distinguished a lawyer as my friend from Fleming calling that position a sinecure. We believe, and I now believe, that the Chief Justice would have more to do than .any Judge on the bench.' Mark you, he has to review and hear every petition for a •rehearing. In reviewing a petition for a re­hearing that would, of course, necessitate .an examination of the entire' record and all the authorities cited. There are three •Judges in each division, and he will have to review the work of each of them. So .that the one man would have to review the work of six Judges; but we have provided via this report that if this work should become too burdensome, if it should heoome more than he could do, then that he may •select one of the Judges from the division not deciding the question, and refer the .petition for rehearing to that Judge, who, vfor the particular case referred to him, would have all the powers of the Chief, -Justice; so that if the work should become
192
too large for the Chief Justice to perform, you have a Judge deciding the case different from the one deciding the petition for re­hearing, different from the one deciding the case. He will review it carefully, and determine whether there shall be a rehear­ing, and if he does so determine, then the whole Court will he called together, and pass upon the question. ISTow, those two difficulties we say have been obviated. What does the gentlemen say for the two systems ? They say, since the two systems have been organized, you have had such a vast number of cases disposed of. Granted. We propose that until 1894 you shall take the same Judges of the Court of Appeals, • the same three Judges of the Superior Court, with the same intelligence, honesty and energy, and say to them, instead of your sitting as two Courts, you shall come together, and sit as one; the Court of Appeals meets to-day, the Superior Court to-morrow; . but instead of calling it a Superior Court, it is the other branch of the Court of Appeals that meets to-morrow, and both do the same amount of work. All that you have said about their dis­patch of business can be said when you put them together, and still get rid of the objectionable features. What are these objectionable features ? The gentle­men do not seem to be agreed amongst themselves. My friend from Fleming wants you to make the Superior Court a Constitutional Court. The Chairman of the Committee wants you to make it a quasi-Constitutional Court, au­thorizing the Legislature after 1900 to abolish it if it sees proper. Both of them, in my judgment, want you to make it what might be called, in plain English terms, a bob-tail Court, without dignity, whose opin­ions amount to nothing, who simply sit there to pass on questions that involve an amount of money that would virtually ex­clude from the highest Court of the land nine-tenths of the litigation in this country, and that of that.class of people that deserve3034 THE JUDICIARY.
W ednesday,]
consideration from this Convention in­finitely more than any other. What has been the trouble in the past ? It has been 'this: The Superior Court of Kentucky have rendered decisions absolutely in con­flict with reported cases of the Court of Appeals. I could give you instances that come home to every man upon this floor. Soon after the local option law went into effect in the Commonwealth, a law that was believed to he wise and just, a law that was believed to he important to the various localities, the Court of Appeals, in a printed opinion published in the books as • the daw of the land, laid down that certain requisites were required in an indictment. I refer to the case of Young vs. the Commonwealth; and yet the Superior Court, in the face of that opinion, decided that that was not •sufficient. By that decision they wiped from the dockets of the Commonwealth of Kentucky those indictments that had been .placed there. One was authority, the other was not. The Superior Court’s opinion was hound to he followed in the particular case. If it was not followed by the Circuit Court Judge, they by mandate could compel it; and yet that Circuit Judge, in turning to the authority that he was bound by, found it was in conflict. They went a step further. That Court de­cided that, under the same local option law, a distiller who sold liquor by the quart on the premises of his own manufacture was not subject, to the penalty imposed by the local option law. The Court of Ap­peals had held differently, and here the Circuit Judge, when an indictment was presented, and the party was arraigned, was confronted by two decisions; . first, the Court of Appeals has said this is the law; the Superior Court has said the other is the law. If you go contrary to the Court of Appeals, you violate your oath of office; if you go contrary to the Superior Court, you will be reversed. Hundreds of distillers over the country, acting under the law as laid down by the Superior Court, went on
[January 28.
selling liquor; yet by some chance the case- reached the Court of Appeals, and that Court adhered to its former ruling, and de­cided that distillers were subject to the- penalties imposed by the local option law. These gentlemen all over the country were- confronted by a penalty which was to he- imposed, although the Superior Court had decided that they could go on and sell. Both Courts were honest. Understand, I make no reflection upon the Court; but there is a conflict, and how could you get around it ? There is no way to get around it. The Superior Court was not authority, You could not make it authority. You do not propose to make it authority now; but you simply say, in the language of the dis­tinguished Chairman of that Committee, “ they dispatch the business, and get rid of' the cases.”
Now, again, the gentleman said on yes­terday afternoon that not over forty per cent, of the cases of the Superior Court ever asked an appeal; that sixty per cent, of them were satisfied with the opinions.
I. do not know how it is with the balance of Kentucky------
Mr. HINES. Pardon me for a correc­tion. I said that in over eighty per cent, of the cases appealed to the Superior Court, there was no application made for ■ appeal to the Court of Appeals.
' Mr. BEONSTONT. I will give the gen­tleman the benefit of eighty per cent. Eighty per cent, of the cases do not ask an appeal. That would be only twenty per­cent. that did ask an appeal. I cannot speak for the balance; hut in my section of the country, I will tell you why they do not ask for an appeal; it is because they knew they could not get it. "We triedit,, and the Court would not give it. It is en­tirely within their jurisdiction. The law- provides, if it be a novel question, they could give the appeal; but they decide whether it is novel or not. And knowing . that the Court of Appeals was crowded, and not willing that their opinions should be-
Bronston—Hines.
THE JUDICIARY. 3035
Bkonston—Jonson. [January 28.
’Wednesday,]
revised in eighty per cent, pf the first cases that we tried, they said “ No.”
Mr. JONSON. Will the gentleman yield for a question ?
Mr. BBONSTON. Certainly.
Mr. JONSON. Has not this report re­moved the objection you are urging against the Superior Court, by putting it in the hands of the Judges of the Appellate Court to grant the appeal, and taking it away from the other Court ?
Mr. BBONSTON. I am1 obliged to the gentleman for the question. I will answer that presently, because what I am saying now is preliminary to answering that ques­tion. I want to get first the objection plainly before the minds of the Conven­tion, and then I will review the efforts that they make to remove that objection. I want to give you a plain, old-fashioned illustration of what I mean by that Court passing on novel questions and granting an appeal. I had the honor, as well as the dissatisfaction, of being connected with a case of this character; and it is a plain practical case, that comes, no doubt, within the experience of every litigant and of every citizen. Where an enterprising gen­tleman comes to your house, and proposes to make an improvement, and says to you, “ Now, if I don’t do exactly what I say to you, you shall not pay a cent.”
A company is organized for the purpose of doing something—they do not know much about it in the way of manufactur­ing—and one of these gentry comes along and says: “Now, I have something that will enable you to accomplish exactly what you want to do; I will enter into a contract with you by which I will guar­antee that, if the work does not come up exactly to what I say, that I am not to be paid one cent for either the labor or mate­rial furnished.” The contract was made. In the course of time the case was tried be­fore the Circuit Court, and, of course, was decided against the contractor. It came to the Superior Court, and was reversed. An
appeal was asked, because it was believed to be a novel question that came home to each and every citizen of the Common­wealth—as to whether they should be allowed to be imposed on by these schemers. That Court said, “ho, no!” It was tried again in the lower Court, and again came to the Superior Court, and was reversed again, and no appeal was allowed to the higher Court, because it was held that no novel question was involved; and yet, although case upon case from the Court of Appeals could be cited and was cited, yet that particular case is decided without the enunciation of a single principle, and the litigants in that immediate locality, when they had occasion to consult a lawyer as to what was the law on that particular point, he was bound, as a lawyer, to say: “This will be the law, according to the decision of the Superior Court.”
The gentleman from McLean asked me a question, whether they have not obviated that difficulty? Now, here is the way they seek to obviate it. They provide:
Where the fine or the amount in contro­versy is as much as two thousand dollars, exclusive of interest and cost, an appeal to the Court of Appeals shall be allowed as a matter of right. In all other cases, the Court of Appeals may grant an appeal from the decision of the Superior Court, when, on- inspection of the record, the Court is of opinion that the questions of law involved are novel, or that the decision is- contrary to law. On an appeal from the Superior Court to the Court of Appeals the record, as considered in the Superior Court, shall be transmitted to the Court o f Appeals, and passed upon as if the appeal had come direct from the Court in which the original judgment appealed from was rendered. •
Now, what does that mean? It means either one of two things. It means that the Court of Appeals as a Court would have to examine every record and all the authorities cited in every case decided by the Superior Court, or, it means, on the other hand, that one Judge of the Court of Appeals could pass on the question as to■3036 THE JUDICIARY.
"Wednesday,] Bkonstok. [January 28.
whether or not you had the right of ap­peal from the Superior Court to the Court of Appeals. Now, if you say that all the Judges—that is the language of the report, because it says, the Court of Appeals—if you say all the Judges must examine the record and must examine the authority "before passing on the question as to whether you can take an' appeal, how much addi­tional labor will you impose on the Court of Appeals? You virtually say that four Judges shall review every case coming from the Superior Court; that they should examine all of the facts; that they should examine all the authorities, and would you not, instead of relieving it of the enormous amount of work that it had to do before— would you not increase the amount of its labor ? Could they do it, and could they do it honestly?
But the gentlemen have suggested that, by a rule of Court, it could be provided that a lawyer, in his prayer for an appeal, could suggest why he should have it. Then, I say, if that be the case, it is a sham upon justice; it is a sham to say that you shall provide in your Constitution that the right of appeal shall lie with the whole Court to examine the record and determine • on the question of the right of appeal. You may try to evade that by saying that one Judge may determine the question. If you leave it to one Judge—and, I say, that human nature is the same on the Court of Appeals bench as anywhere else —I say that it would depend entirely on -the amount of business before that Court; it would depend entirely on whether that -particular Judge, to whom you submit your prayer for appeal, was in a good, humor, and felt like working, and grap­pling .with the questions you would sub­mit. or whether he had been overworked and crowded, and was tired, if you were •simply to say that you can trust or I can trust to the integrity or the ability of the Superior Court. Now, take the other horn of the dilemma. I answer the Dele­gate
from McCracken, have you avoided the difficulty? Would it not be infinitely better, Instead of saying that there should be this Court, with a limited jurisdiction, with no authority except to divide the cases, would it not be better to clothe these three Judges with equal dignity that the other three have, and instead of having a Superior and Inferior Court, put them on the same footing, and say: “Gentlemen, we invite the best legal talent of the country to come and tgke these positions;- we ask you to come to this work, not merely for the purpose of dispatching the cases, but for the determination of the great princi­ples of law ?”
I say it seems to me like a burlesque. It is, in my candid judgment, a burlesque to invite the Commonwealth of Kentucky to select from its bar men of learning, men of wisdom, men of integrity, and place.them on the Supreme bench of Kentuckju Gentlemen, a man comes on the bench, not simply attracted by the compensation at­tached-to the office. The lawyers of this Commonwealth who aspire to a place on the bench of the Court of Appeals do not seek to go there simply for the salary. They are actuated by the same ambition that my young friend from Henry is—they want to make a name for themselves, and for that purpose, and with that end in view, they have spent many a weary time at the midnight hour. It is not for the few paltry dollars that you pay them for the services, but for the purpose of making a name for posterity, as great and learned lawyers and conscientious men, who are to determine these vital questions; and yet no man can go upon the Superior Court bench of Kentucky with any such feeling. He can make no name; he can make no repu­tation. He is just like a Master Commis­sioner in a Circuit Court. However learned his reports may be, he is submerged en­tirely in the light of the Court who sit upon the bench. Those gentlemen may render their opinions, but they go into theTHE JUDICIARY. 3037
Wednesday,] , Broxston— Birkhead—K ennedy. [January 28.
pigeon-holes, not upon the records for future generations to see. Is that fair or just ? Gentlemen say that that Court shall he limited in its jurisdiction; that it shall never pass on the validity of a statute. The idea of making a Constitutional Court, and'dignifying it by Constitutional recog­nition, and yet saying it shall not pass on the validity of a statute* Again, you say it shall not pass on the title to free­hold or right of franchise. Do you propose to say a man shall leave his profession and home, and shall give to the Commonwealth the benefit of his learning and wisdom, and then say he shall not pass on the validity of a title to a freehold or a right to a franchise, when you know that in the advancing progress of Kentucky’s ma­terialistic history that the most important litigation that can arise hereafter will be in passing on the validity of franchises, or the rights of one of those corporations; and yet you say there are four Judges who may sit on the Court of Appeals bench, and not onlv perform all the work and examine all trie records and review all the cases sub­mitted to the inferior Courts, who cannot touch such a thing. And you then say they shall, not pass on cases of felony. You dignify them by Constitutional recogni­tion, and yet say they shall not pass on the question of whether a man is properly con­victed for breaking into a meat-house after dark. Again you say they shall not pass on a question involving the probate of a will. Under the law as it stands to-day you may try your will case and have it sustained by the verdict of a jury; you may have ninety-nine men of the vicinage who believe that the will is wrong and ought not to stand, and yet one Judge of the Court of Appeals of Kentucky, under the system which gentlemen maintain, may re­verse that and deny that, deny you your right, and order the will to probate, although made by a wooden man, pulled by, a string like a puppet. '
The CHAIRMAN. It is my disagree­able
duty to inform the Delegate that his time is up.
Mr. BIRKHEAD. 1 move that it be extended.
Mr. HENDRICK. I second it.
A vote being taken, the motion was car­ried.
Mr.BRONSTON. I am thankful to the gentlemen, but I made a promise to myself and to my associates that I would not go over twenty minutes; and, therefore, will not further consume your time.
Mr. KENNEDY'. It is not saying too much, perhaps, when it is affirmed that the most important subject for the considera­tion of this Convention is that of the Judi­ciary. When we consider the far-reaching powers of the Courts under our govern­ment, what they may and can do, and what they have done, then the importance of this department of the government will be clearly seen. It is the Judiciary which holds a check upon both the Executive and Legislative Departments, and which' is the safeguard of the Constitution, the bulwark of the people, and the protection of our free institutions. In discussing a question of this importance, I propose to do it calmly and dispassionately, and as, briefly as possi­ble. I was not a member of the Court of Appeals Committee, but by virtue of the fact that I was a member of the Committee- on Circuit Courts, I became a member of the Joint Committee on the Courts, and as­a member of that Joint Committee, I de­sire to say that the report made by it,, concerning the Court of Appeals, taken as a whole, meets my approval. . There are some matters of detail I will probably vote to change, but the report as­. a whole embraces my idea’ of the organiza­tion of the Court of appeals. I am in favor- of one Supreme Court only, to be styled’ the Court of Appeals, and to consist of six- Judges and a Chief Justice, seven in all, to be separated into two divisions, each of three Judges, each division to be presided over by the Chief Justice. This will giver3038 THE JUDICIARY.
Wednesday,] Kennedy. [January 28,
us the same number of Judges that now compose both the Superior and the Court of Appeals, and do away with the necessity for the continuance of the Superior Court. Every one knows that the Superior Court was only created by the Legislature for the purpose of relieving the overcrowded docket of the Court of Appeals, and it has always been considered a temporary Court, and there has been a general under­standing all the time among the people and the lawyers that its existence would not survive this Convention. It seems, however, that the Committee on Court of • Appeals, by their report filed, still think that the existence of the Superior Court is a necessity, and with that deference due to the able and distinguished Delegates who compose that Committee, I propose, briefly, tb give the reasons which induce me to believe that we should have only one Court of last resort. I am quite certain that justice will be best secured by uniform­ity of decisions. No one will deny that proposition. In theory, law is a science with well defined and certain fixed princi­ples, yet flexible enough to furnish a rem­edy for every conceivable wrong, and sufficiently elastic to keep pace with the growth and development of our peo­ple. In practice, law is what our Courts say it is, nothing more nor less. Text­books may be both persuasive and convinc­ing on a certain legal question; but if our Court of Appeals decides that question differently, the decision of the Court on that question is the law of Kentucky. Hence, if we want to know the law appli­cable to us, we must know what our Courts .have said on the various questions of law, and unless there is, uniformity in decisions, we will hardly be able to know what the law is. Now, the question that confronts us squarely is, will not one Ap­pellate Court be more likely to give us. uniformity in decisions than two separate and independent Appellate Courts? I think so beyond any doubt. Where there
are two separate Appellate Courts, whose judgments are final within cer­tain limits, there is likely to be a contrariety of decisions, just as the Appel­late Courts of the various States sometimes differ in their decisions about the same principle of law. Every lawyer knows what a contrariety of decisions there is in the various Courts throughout the Union on the same questions of law; and where there are two independent and separate Appellate Courts in any State, the same thing will likely occur. Then, again, if the Superior Court, as organized, respects , the doctrine of stare decisis, that Court will not feel at liberty to modify or over­rule a principle heretofore established by the Court of Appeals, although that prin- ' ciple is now recognized as contrary to the more enlightened and correct view of the law. On the other hand, if the Superior Court does not adhere to the former de­cisions of the Court of Appeals, then we may have the confusion of two different decisions on the same legal question, so that, in either event, we may find ourselves in the middle of a bad fix. This con­fusion can be avoided by having one Ap­pellate Court. Have we not had this confusion in Kentucky? Did not the Delegate from Lexington cite you to several cases in which it had occurred? I can show you many more instances in which it has occurred, further illus­trating that fact. 'Wherever you have two separate and independent Appellate Courts, you will almost inevitably have different decisions on the same questions of law. As an illustration of this fact, I call attention to the case of Pickett vs. Harrod, 9 Ky. Law Bep., in which the Court ot Appeals decided that—
A School Commissioner who was elected under the provisions of the -General Stat­utes, and held over until a County Super­intendent was elected and qualified under the present law, approved May 12th, 1884, is entitled to compensation, as provided by the General Statutes, for reporting theTHE JUDICIARY. 3039
"Wednesday,] Kennedy. [January 28.
■census of the school children of the county for the year 1884, although the service was performed after the present law' went into •effect.
That decision was rendered by the Court of Appeals in 1887. The same question was presented to the Superior Court, and was decided hy that Court in December, 1889, and they not only decided the question differently, hut go further, and attempt to reverse the Court of Appeals. I have reference to the case of Pickett vs. Adams, reported in the 11th Ky. Law Pep or ter, where the same question was involved, and that Court not only decided the same ques­tion the other way, but expressly disap­proved the doctrine announced by the Court of Appeals, for the Superior Court says: . '
The Court does not feel bound by the ■ case of Pickett vs. Harrod, 9th Ky. Law Eeporter, page 687, as the Court of Ap­peals had no jurisdiction of that case, and its exercise of jurisdiction was doubtless inadvertent.
Now, I do not mean by this to criticise these Courts, or the Judges of either Court, for both Courts doubtless decided the ques­tion involved after mature consideration, and in accordance with the law as they un­derstood it; but it is the systein I am crit­icising that renders such conflict of opinion possible. So far as the J udges of both our Appellate Courts are concerned, every one admits that they are men of clean hands, ^against whom nothing can be said,, and those who know them best are loudest in their praises, which speaks volumes for -their fitness and qualifications for the im­portant duties which the people have called upon them to discharge. It is against the system of Courts that renders this contra­riety of decisions possible that we are mar­shaling our forces. It is not a fight against the Judges of our Courts, but a fight for a better Court system.
Then, again, the Superior Court, or any • other Court of limited and inferior appel­late jurisdiction, will not have that respect,
in the minds of the people, that it ought to have.
We all know that the people throughout the State of Kentucky call the Superior Court the “Poor Man’s Court,” and that many of them feel that their rights have been denied them, because the amount involved was not sufficient to entitle them to a nrueh coveted place on the docket of the Court of Appeals. However unjust this feeling may be on the part of the peo­ple toward that Court, sound policy de­mands that we shall not 'ignore it, for the enforcement of law depends upon the respect the people have for those who administer it. Now, if our Court of Appeals is composed of six Judges and a Chief Justice, and divided into two divisions, each of three Judges, and each division is presided over by the Chief Jus-* tice, and the unanimous decision of each division is made final, and for the whole Court, then the Court, as thus constructed, can do all the work now done by both the Appellate Courts. Then the Legislature can provide that the cases shall he equally distributed between the two divisions, and have the records printed, and require all the Judges of each division to read each record given that division, and then a con­sultation can be had with a clear under­standing of the law and the facts of each case, and a correct decision rendered.
Of course, whenever the Chief Justice deemed it necessary, in order to avoid a conflict of opinion between, the. two branches, or for other sufficient reason, he should call the whole Court together, all of which matters will be governed by the rules of Court. The Court of Appeals, thus organized, can do all the business, and with more satisfaction to the people, than the present system of Courts, because the decisions of the Superior Court are not con­sidered binding on the inferior Courts; and it was not intended that the decisions of that Court should be authority except in the particular case decided. Every lawyer3040 THE JUDICIARY.
Wednesday,] K ennedy. f January 28..
knows the importance of an examination of a record; and, under the system pro­posed, each record submitted will he read by at least three Judges, and thus, a de­cision will be given by at least three able and learned jurists, which decision will be a reliable precedent for the subsequent guidance of the people in their affairs. I am not particular whether the J udges are elected from Districts, or from the State at large; my preference is, that they should be elected from Districts, as reported by the Committee, and that the Chief Justice should be elected from the State at large. But what I want' to secure is the system, firmly believing that one Appellate Court, thus organized, will not only do all the •business, but do it better than two Courts, and also satisfy the demand for a change in the system. As Secretary of the Joint Committee on the Judiciary, I received a large number of petitions from the bar of this State, asking that the Superior Court be abolished, and that the Court be constructed as recommended by the Joint Committee, and not a single petition for the retention of the present Court system. N ow, I want you to notice the argument of the Delegate from Franklin and the argument of the Delegate from Fleming. They both admit that the Superior Court has not given satisfaction to the people, but after diagnosing the case they disagree as to the remedy. The Delegate from Franklin said the dissatisfaction arose because of the manner in which appeals were taken from the Superior to the Court of Appeals; and the Delegate from Fleming said it was be­cause the Superior Court was a legislative Court. How does the Delegate from Franklin propose to remedy the difficulty ? The Committee of which he is Chairman proposes that when the amount is over $2,000 the appeal shall be as a matter of right; and under that the record shall be submitted to the Court of Appeals, and if the Court of Appeals thinks the decision was contrary to law, then the appeal shall
be granted. Do you not know that every lawyer , who loses a case in the Superion- Court will take his record' to the Court of' Appeals, and the Court of Appeals will be- required to read the record, and will get as* far behind as they were before the Superior Court was created? The work of that Court will be doubled. The Superior Court will not likely convince him, and he will go on to the Court of Appeals, and you will have the Court of Appeals doing all the work now done by both Courts. The Delegate from Franklin says that one of his chief objections to the report of the Joint Committee is that it makes the Chief Justice a figure-head. If it does, if this* system is adopted, there are numbers of lawyers throughout this Commonwealth who will strive to be that figure-head. It would be a greater honor to be Chief Jus­tice of the Court of Appeals under this re­port than to be Governor of the State of Kentucky. What does the report provide- for ? The Delegate from Franklin read so much of section 10 as provided that the- Chief Justice should consider petitions for- rehearing, and then he stopped. What does it provide in case the Judges of a. division should disagree? Such a case shall be decided and heard by the whole- Court. IIow often will they disagree ? Once or twice a week, perhaps. Then the- Chief Justice will have to preside, and he can 'render the opinion in every case in which they disagree, if he desires. The re­port provides that upon a rehearing of a> case, it shall be considered by the whole- Court, four of whom, together with the- Chief Justice, or acting Chief Justice, shall constitute a quorum; and inasmuch as he- decides whether or not there should be a rehearing, he will! likely, in most of such cases, render the opinion when a rehearing is granted. Instead of a figure-head, he will be considered the most dignified officer- in the State of Kentucky.
The Delegate from Fleming, in his elo­quent speech, adorned with festoons ofTHE JUDICIARY. 3041
Wednesday,] Kennedy-
graceful rhetoric, would have yoq believe that because we can never attain the ideal, therefore that we should stop all efforts at reform. His entire argument was to show that we could not attain the ideal, and he tried to convince us of this fact by filing as an exhibit the private characters of Coke, Thurlow and Kenyon; and the logical sequence of his argument was, that although the present system of Appellate Courts is not satisfactory to the people, nevertheless be content with what you have. Suppose we cannot secure the ideal Court; is that any reason why We should not not try to improve our Court system ? I know we cannot attain the ideal in this life, but the fact that we may approximate it, even in a remote degree, is a sufficient reward for the trial.
Mr. HENDRICK. I did not mean to be understood as expressing dissatisfaction with the Court of Appeals. My conten­tion was it never could be an ideal Court.
Mr. KENNEDY. We may not be able to reach that upon which we have fixed our eyes_; but the very fact that we try to do it will oftentimes ennoble and elevate us. If we cannot.secure the ideal Court, let us aim high, nevertheless, and endeavor to secure that system which will approximate near­est to it.
There are several provisions in this re­port that I had intended to go over in de­tail; but the Delegate from Lincoln, and the Delegate from Lexington so ably cov­ered these matters of detail in their argu­ments, that I shall confine all further re­marks to section 6 of the report of the Committee. Section 6 reads as follows, and I desire your careful consideration of this section:
No person shall be eligible to election to the office, either of Chief Justice or Judge of Court of Appeals, who is not a citizen of the United States and a citizen of this State, and who has not resided in this State for five years next preceding his election, and who is less than thirty-five years of age, and who has not been a practicing lawyer twelve years, or whose services upon the
•Hendrick. [January 28..
bench of a Court of record, when added to- the time he may have practiced law, shall not be equal to twelve years; and they shall severally be ineligible to re-election after having served a full term of twelve years
If there is any section in that report that I do approve fully, it is section six. No man should go on the bench of the- Court of Appeals until he shall have prac­ticed law twelve years, and shall have at­tained the age of thirty-five years. The- old system provides that a man may go on the bench when he is thirty years of age- and has practiced law eight years. I ap­peal to all the lawyers in this Convention, who are over forty years of age, to look: back to the time when you had practiced law only eight years, and say whether or not you were competent to fill that impor­tant office. I say that nine out of ten will answer no, and not only that, but a man at the age of thirty is not sufficiently exper­ienced in worldly matters to qualify him to- fill that important position. Age brings- with it experience and ripens wisdom. Youth is too often rash, headstrong, se­duced by passion, the foe to reason. Our Judges of the Court of Appeals should not go on the bench until they are thirty-five years of age, and until they have practiced! law twelve years. The matter that I want to discuss particularly, however, in this sec­tion is, that the term of office of Judges of the Court of Appeals shall be lengthened to twelve years, and they shall be made ineligi­ble for the second term. ’Will you listen carefully to a few brief statistics that I have collected, and from them I want to draw the logical conclusion. For these statistics I am indebted principally to Mr. Hitchcock’s little book on American State Constitu­tions. In 1800 there were fifteen States in this Union, and in no one of these States- were Judges then elected by the people;, but they were all appointed.
The first departure from this old system was made by an amendment to the Con­stitution of Georgia in 1812, which pro-3042 THE JUDICIARY.
Wednesday,] K ennedy. ■ [January 28.
vided that the justices of the inferior or County Courts should he elected for a term of four years by the people of each •county. Prom, that time on up to 1846. one or two other States provided for the. ■election of Judges in part by the people. In the year 1846 Iowa and New York framed new Constitutions, and both these Constitutions made all Judges elective by 'the people. Within the next four years ■eleven other (States—Illinois, Wisconsin, Arkansas, California, Pennsylvania, Mis­souri, Virginia, Alabama, Connecticut, Kentucky and Michigan ■— adopted, in whole or in part, the method of popular ■election of Judges. Between 1850 and 1860 several other States adopted the elec­tive system, in whole or in part, to wit: Ohio, Indiana, Maryland, Louisiana, Ten­nessee, Maine, Minnesota, Oregon and Kan­sas. . •
By the year 1860, therefore, about twen­ty-four out of the thirty-four States then composing the Union, had adopted the method of electing Judges by the people to a greater or less extent. After 1860 the first Constitutions of West Virginia, Ne­vada, Nebraska and Colorado made all Judges elective, as did also the revised Constitutions of Plorida in 1865, of Texas in 1866, and of North Carolina in 1868. .
By the year 1868, however, this ten­dency to elect Judges by the popular vote seems to have reached its maximum, and changes have taken place since that time which indicate rather an opposite tendency.
In New York, by the amendment of 1869, the judicial term was lengthened from, eight to fourteen years. In Penn­sylvania, by the new Constitution of 1873, the term was lengthened from fifteen to twenty-one years for Supreme Judges, and from five to ten years for other Judges. In Missouri, the term of Supreme Court Judges was lengthened, in 1875, from six to ten years, and that of the Judges of two Intermediate Appellate Courts was made twelve years. In California, the last Con­stitution
of that State changed the term of the Supreme Court Judges from ten to twelve years, and in Maryland the terms of the Judges have been increased from ten to fifteen years.
Virginia, Louisiana, Ploi’ida and Missis­sippi have abandoned the system of popu- ular election of Judges, and, likewise Maine, in 1876, and Connecticut, by the amendment of 1880.
I understand that the four new W estern States, recently admitted, have adopted the system of the election of Judges by popu­lar vote, hut the tendency has been the other way for the past twenty-five years. In many of the States, where the elective system has been tried, it has been aban­doned, and in many other States the terms of the Judges have been lengthened, and, in some instances, they have been made ineligible.
These statistics are not used for the pur­pose of basing any argument upon them against the election of Judges by the pop­ular vote, but simply to. show that the ques­tion as to the best method of securing an independent Judiciary is not yet a settled one. Some States having tried the elective system for a number of years, have aban­doned it, while in other States they have lengthened the judicial terms, all of which means that the election of Judges by the popular vote for a short term of office has not yet proved a success in giving to the people an independent Judiciary; and in many of the States they have not only lengthened the judicial term, hut have made it so long that a Judge, in the course of nature, can hardly serve hut one term; and this has been done for the sole purpose of making the Judge independent while in office. There is a great difference in _the duties to be performed by Judges and in those to he performed by other officers, and the line of reasoning that will justify the people in giving to their servant, elected to fill some office#in a representative capacity, a second term as an “ indorsement,” willTHE JUDICIARY. 3048
Wednesday,]
not apply to Judges. In our Government, where the majority rules, only the domi­nant party elects the officers, and they are ■expected to reflect the will,* and carry out the views of the majority, or the will of the people, as it is commonly called; hence, an officer desires a second term as an “indorse­ment,” as evidence of the fact that he has, in the discharge of his official duties, re­flected the will of the people.
Is it expected, or will anybody contend, that a Judge should reflect the will of the people? In a representative popular gov­ernment like this, those who hold office in the departments of the Government other than the Judiciary Department, are ser­vants of the public, and it is intended that they should reflect the will of the people; and those officers who, in their representa­tive capacity, best reflect the will of the people, are understood to serve the people best. Are Judges intended to reflect the will of the people ? Are they intended to represent any party or any measure ? Cer­tainly not. In so far as a Judge represents any party or measure,, to that extent is he unfit for the office. It is the duty of the Judge to administer the law without fear or favor, regardless of parties or measures. Just as the law is wise and pure, erecting the highest standard of equity and justice, 'and the loftiest ensign of virtue and patri­otism, so should the representative of the law—the Judge on the bench—not only represent the majesty and dignity, but also reflect the excellence and purity of the law, and by both precept and example inspire confidence in the J udiciary, and respect for the law; but, in order that the J udge may always maintain this exalted position, he should be placed beyond the miasmatic in­fluences of heated contests and the baneful effects of an overanxious desire to suc­ceed himself in office; and under our elec­tive system, the nearest' and surest relief is to lengthen the term, and make him ineli­gible for the second term. To make a •Judge ineligible for the second term is no
[January 28.
reflection upon the honesty of such an official.
Why do we give our Sheriff one term, as we propose under this Constitution, and make him ineligible for a second? Why do we give our Governor one term, and make him ineligible for the second ? It is not because the Sheriff and the Governor are dishonest, but it is for another reason; it is to take away from them the temptation to use their official position to perpetuate themselves in office, so that the people may feel assured of a faithful service. A man when elected to the office of Judge still has the same human nature, and if we make our Governor ineligible, for a much greater reason should our Judges be made ineligi­ble. We are slow to realize fully the im­portance of an independent Judiciary, and slow to realize that the standard of justice will be no higher than the degree of judi­cial independence. If we believe, as we profess, that the law is wise and just, then let us place our Judges in such a position that they will have the fullest opportunity of exhibiting its wisdom and justice. Let it be understood that our Judges represent no man, no measure, no party, but repre­sent the law. Let it be understood that the Judiciary of Kentucky is the very Citadel of Justice, and the benign effects of such an assurance will sweep far beyond our highest expectations.
Mr. CARROLL. There are two plans proposed for the re-organization of the Appellate Courts of this State, differing widely from each other in several substan­tial particulars. One plan proposes one Court with seven Judges, who shall, be elected for twelve years—the six associate Justices from districts, and the Chief Jus­tice from the State at large, and who shall be ineligible for re- election. The other plan proposes two Courts,’virtually as they are now established, whose Judges shall be elected respectively from districts for eight and six years, and who shall be eligible for re-election. One of these plans is an ex-
K ennedy—Carroll.
3044 THE JUDICIARY.
Wednesday,] Carroll. [January 28.
periment. The other has been tried. One system we know is satisfactory to a large part of the lawyers as well as the people of this'State; and the other plan the people and the lawyers know little, if any thing about. So, that in dealing with this im­portant question, we should consider the matter carefully before discarding that which we have, to take up that about which . we know little or nothing. The present system has been criticised by the gentlemen who have preceded me; but can you point to a single department of the Government that cannot be criticised ? Can yoif point me to a single official in the State of Ken­tucky, from the Governor down to the low­est official in it, whose public acts or whose private conduct some person at some time or another has not seen proper to criticise? . . Can you point me .to a government on the face of the globe that cannot be criticised or censured by some person for something it has done or left undone? So that, as a matter of fact, when we hear these often trivial criticisms and personal objec­tions and censures, growing out of spleen, perhaps, or defeat, they ought to have little weight with us. I shall take up as briefly as I can the objections that I have heard urged to the present system, and I think that each one of them can be satisfactorily answered. It is worthy of notice that gentlemen who have been in­vestigating carefully and diligently the decisions of the Superior Court of Ken­tucky have only been able to And, in the course of its eight years’ of existence, and in the 4,000 cases decided by it, three cases in which they say the Superior Court de­cided contrary' to the law as laid down by the Court of Appeals ; and yet they say, because in eight years’ service they can And three cases out of 4,000 in which the Supe­rior Court of Kentucky have decided cases in conflict with the opinions of the Court of Appeals of Kentucky, the Superior Court should be abolished, as being uir worthy of the position it occupies in this
State. Is that a valid objection ? It is said again that the opinions of the Supe­rior Court of Kentucky are not authority7, except in the particular case that they de­cide. I would inquire of these gentlemen if it is not a fact that two-thirds of the cases decided by the Court of Appeals of Ken­tucky are only authority in the particular case itself? I refer to its unpublished opinions. And, in support of that proposi­tion, which I desire to elaborate a little further, I am sustained by Judge Bullitt, who occupied a position upon the Supreme Bench of this State for years, and who is recognized as one of the best lawyers in the State of Kentucky. In the preface to his Code of Practice he says :
Though Circuit Judges may feel bound to follow them (that is, unpublished opinions), the Court of Appeals pays them little or no respect, unless they happen to accord with views formed independently of them; and, in short, that the practice of’ publishing opinions which the Court did not choose to rescue from oblivion is, as a general rule, “more honored in the breach than the observance.”
'This is the statement of a man who occupied a high position upon the Court of Appeals bench of this State, rec­ognized as one of our ablest and most pro­found lawyers, and he says that the unpub­lished opinions of the Court of Appeals of Kentucky are not regarded as binding upon that Court, and neyer have been. It is also well known that the Court of Ap­peals, under our statute, are not required to report all their cases. They are only re­quired to report for publication such cases as they think present novel questions, or- as seem to them necessary in order to settle the law of the land; and those cases de~ . cided that do not involve novel questions, that they do not deem necessary to settle the law of the land, are not published, and are not binding upon the Court as authori­ty in subsequent cases. So that, as a mat­ter of fact, the unpublished opinions of the Court of Appeals and the opinions of the Superior Court of Kentucky stand sub-THE JUDICIARY. 3045
"Wednesday,] - Carroll—Sachs. [January 28.
stantially upon tire same ground, as all •cases decided "by the Superior Court, in­volving new or novel questions, are certi­fied to the Court of Appeals, and there •decided and published. ’
■ It is ui'ged again that the poor man can not take an appeal from the Superior Court to the Court of Appeals, and, therefore, the Superior Court ought to he abolished; that any Court, in other words, to which a poor man cannot take a little case, ought to be abolished. For the same reason you ought to abolish the Circuit Court, because no litigant who has not a suit involving over fifty dollars' can bring it or get it in the Circuit Court. For a still better rea­son you ought to abolish the Quarterly Court, because the very poor man who happens to have a suit involving less than twenty-five dollars cannot get it in the Quarterly Court; for the same reason the Circuit Court of the "United States ought to be abolished, because a man who has a case involving over five thousand dollars •cannot appeal from that Court to the Su­preme Court of the United States. '
So that this alleged argument is not en­titled to, and ought not to have, much weight with this body. There has never yet been organized a system of J udiciary in any State or nation, whose Courts are not graded, and whose Courts of last resort were not alone for the trial of important cases, questions involving the right of lib­erty, or the right of property in a large amount; and persons having small cases, involving inconsiderable amounts, must look to those inferior tribunals established for the consideration of cases of that char­acter. .
Has the Superior Court proven unsatis­factory so far? If it has, then some other scheme ought to be devised to take its place. If it has proven satisfactory, then, unless a better plan is offered, the present system ought to prevail. It is a fact, unde­nied, and stated upon the floor of this Con­vention, that in only twenty mases put of
every hundred decided by the Superior Court has there been an appeal asked to the Court of Appeals.
There is nothing to prevent any litigant from asking an appeal. That Court may decline to grant it, yet any person, who has a case in that Court, no matter what kind or character of question may be in­volved, has the right to file in that Court an application for an appeal to the Court of Appeals of Kentucky. And if it be a fact that in only twenty cases out of each one hundred decided by that Court has an appeal been asked to the Court of Appeals, it seems persuasive evidence that that Court does good work.
One gentleman said the reason more ap­peals were not prayed was, because of an impression that the Superior Court would not grant them, and the lawyers for that« reason hesitated to ask appeals; but this complaint is certainly not well founded, be­cause no lawyer who has a meritorious case will fail to ask an appeal. My friend from Lexington who made that statement, and who followed it up by citing a case— or two cases, I believe—in which he was counsel, and which the Superior Court de­cided against him, appeared to me to want the Superior Court abolished because it had not adopted his views.
Mr. SACHS. "Will the gentleman per­mit me to interrupt him ?
Mr. CARROLL. Yes, sir.
Mr. SACHS. Youhave stated that the opposition claimed that in only twenty per cent, of the cases tried by the Superior Court an appeal has been asked for, and have placed it on the ground that lawyers refrained from asking appeals to the Court of Appeals because the Superior Court ■'would refuse them. I want to ask you whether you have ever known of lawyers to fail to aslc for any thing because they thought they might not get it ? '
Mr. CARROLL. I never did in my practice, and I never heard of it, and I do not believe that there is a lawyer here who8046 THE JUDICIARY.
Wednesday,] Carroll—Bronston. [January 28.
ever lost a case in a Circuit Court that he thought he ought to have- won where he failed to move for a new trial. I assume that has been the experience of every law­yer on this floor.
Now, sir, there are three substantial objections, in my opinion, to this joint report. The first one is the provision for the election of a Chief Justice from the State at large. I have never been able to perceive any good reason why one Judge of the Court of Appeals should he elected from the entire State, and six of the other Judges elected by districts. I have never been able to discover any good reason why you should put a brass collar around the neck of one Judge, and label him “ Chief Justice,’5 and say to his associates, m “this man is a high dignitary, and placed over you.55 I have never been able to find any good reason why the Chief Justice should alone pass on all petitions for re­hearing, and be empoVered to set aside the judgments rendered by two or three of his associate Judges, as he sees proper.
Mr. BRONSTON. I would like to call the attention of the gentleman "to one mat­ter in this report that he has apparently overlooked. It does not authorize the Chief Justice to set aside any decision, but to grant a rehearing, and upon a rehearing, it requires him to call upon one of the sec- f tions of the Court to decide it.
Mr. CARROLL. I will read the pro­vision referred to:
The Chief Justice shall take no part in any decision or opinion rendered by a division. Petitions for rehearing shall be allowed, which shall be addressed to the Chief Justice, who shall alone consider the same (except as herein provided for to the contrary), and deny or - grant a rehearing upon the law or equities of the case, accord­ing to his discretion. •
Mr. BRONSTON. Read on.
Mr. CARROLL. “ Upon a rehearing of the case it shall be considered by the whole Court, four of whom, together with the Chief Justice or acting Chief Justice, shall
constitute a quorum.55 But I still maintain that my first statement was correct, because with the Chief Justice is left absolutely the right to grant or refuse arehearing, no matter how unanimous the judgment of the Asso­ciate Justices may be, the Chief Justice has alone the right to disturb their decision, and none dare gainsay what he does; he may grant or refuse a rehearing as he thinks proper. I do not agree with other gentle­men, who say that the office of Chief Jus­tice will be a sinecure; I believe there are now eight or nine hundred cases appealed annually to the two Appellate Courts of Kentucky. The number, of course, is in­creasing each year, as the wealth, business and population of the State increases. I have been informed by the Clerk of the Court of Appeals that in forty or fifty per cent, of these cases petitions ^for rehearing are filed. So that in at least forty cases out of each one hundred decided by this Court a petition for rehearing is filed. And the Chief Justice alone,, unaided, as this report says, must read the records in forty cases' out of every hundred appealed, before he can determine whether a rehearing should be granted or not.
Mr. BRONSTON. I would like to call the attention of the gentlemen to another point, as to the matter of petitions for rehearing. That is, that the Chief Justice is empowered, if he finds that he has too much work to do, to select a Judge from the opposite division that decided the case, and to refer that question to him; and that it would have the same power as to that question as he would have.
Mr. CARROLL. That may be true'; I do not dispute that it is; but still it is a matter left with the Chief Justice to deter­mine as he pleases. The other objection that I have is the requirement that the term of office shall be twelve years, and that the Judge shall be ineligible for re-election. In my judgment, eight years is as long as any man ought to hold any office. If he is a competent and faithfulTHE JUDICIARY. 3047-
Wednesday,] Caekoll—McChoed. [January 28.
official; if he is deserving of the position he holds, the people ought to he allowed to re-elect him, if they see proper to do so. If he does not come up to the high standard they require; if he does not discharge faithfully the duties, of his office, then the people should not have him imposed on them for twelve years. I can see no rea­son why Judges should he made ineligible for re-election. You make the Governor ineligible, because of the great patronage at his disposal. You make Assessors and fiscal officers ineligible, because they con­trol the revenues,; but the power of Judges of the Court of Appeals, except in • decid­ing cases, is very restricted ; they have no patronage to bestow; they have nothing to do with the fiscal affairs of the State; they have no positions to give; and if they have done their work well, discharged their duties faithfully, and adorn the posi­tion to which the people have elected them, • there is no reason, in my opinion, why they should not be eligible for re-election.
The other objection I have to that sys­tem is, that it provides for two sections of the Court. The objection to that was very forcibly and well expressed by the distin­guished gentleman from Franklin on yes­terday afternoon, and I can not add to what he so well said. If I am correctly informed, that system prevails in only one State.in the Union—California. At least, I am told that is where the system came from, and I doubt if any respectable law­yer would cite an opinion of that Court in any State in the Union except California.
Mr. McCHORD. I would like to inter­rupt the gentleman to ask him a question. Under the system proposed by you, do not you have the J udges in two sections, one having no control of the other ?
Mr. CARROLL. Yes, entirely so; but they are not of equal jurisdiction. One is an inferior Court and the other is ,an Appel­late and final Court, and there can be no possible conflict between these Courts unless the Superior Court should choose to decide
a case directly contrary to a decision of the- Court of Appeals. And if that is done— as has been done in three cases only in the last eight years—then the Court of Appeals, under the provisions of this bill, can grant an appeal, and I maintain that one of the chief objections that has been urged against the present system, is giviiig the Superior Court the right to grant appeals to the Court of Appeals. As was well said by the gentle­man from Lexington, no Judge that had rendered an opinion would like to see his judgment reversed or reviewed or criti­cised by some other Court. But that ob­jection is entirely removed by providing that the Court of Appeals shall have the- right to say whether or not an appeal may be taken to that Court. It is urged in op­position, that it will impose additional labor on the Court of Appeals; but I would inquire of every lawyer here if he does not believe that by reading the opin­ion delivered by a Court—in nine cases out of ten—a learned Judge can inform him­self as to whether the case presents a new or novel question, or is contrary to law because the Court—no matter whether it be- a Circuit' Court, the Superior Court, or the- Court of Appeals—will generally, in its opinion, present and decide the question of' ^aw in the case.. And a Judge of the Court of Ap.peals, in reading the opinion, can see at once whether the question pre­sented by the lower record is a new or a novel one, or decided contrary to law. If, on the other hand, it is a question of fact—the settlement of accounts or of a partnership, or something of that kind, the Court of Appeals, as the gentle­men know, will not reverse the judgment of the lower Court, unless it is flagrantly against the evidence, as presented by the- record. It is a very rare case, indeed, that, the Court of Appeals will reverse a judg­ment of a Chancellor or verdict of a jury on the facts alone; and, as a rule, it is only when an error of law is committed that;■3048 THE JUDICIARY.
■Wednesday,] Carroll— Coke. , [January 28.
1 the Court of Appeals will reverse, whether ■decided by a Chancellor or.jury.
■ It is also objected to our system, as re­ported hy the Committee, that one Judge has the right to pass upon the question as to whether an appeal shall be granted or .not. Does not that objection apply with
• more force to their system, where the Chief Justice has alone the power to grant a re­hearing; and is not the granting of an ap­; peal to the Court of Appeals from an
inferior Court in the nature o‘f a rehear­ing? Is it not for the purpose of having > the question decided hy the Superior Court, •■passed upon by the Court of Appeals? And if one Judge—’the Chief Justice, .or -some other—is competent to say whether or -not the case decided in that Court shall he •re-opened, why is not one of the Judges of the Court of Appeals competent to deter­mine whether a case shall he brought to the Court of Appeals from the Superior Court?
I do not care to take up further .the time of the Committee in the discussion of this ..question. But it is a matter of very .great importance to every citizen in the State of Kentucky, because no man can tell how - soon questions involving his life, liberty or •property may he passed on by the Judicial Department of our State. And in deter­mining this question, we ought to consider well what we do. If we adopt a .system .that should prove defective—if. we make a mistake in changing the present system— ;it cannot he remedied for years, then let us be certain that we get a better one before we . .adopt it; and, unless these gentlemen can give more cogent reasons than they have ■ given—unless they can urge more substan­tial objections than have been urged why we should change—it seems to me, that it
• would he the part of wisdom to let well
■ enough alone.
Mr.'COKE'. Mr. Chairman,‘there were
■ several urgent reasons which induced the I people of Kentucky to vote for .calling this
Convention. Not the least of those rea-
• sons was a desire to have the Judiciary
system reformed, in order that citizens who are so unfortunate'-as to go to law for the redress of grievences or the enforcements of rights, or who are up on a charge of violating the penal laws of the State, might have a speedy trial, and one without de­lay or postponement further than abso­lutely necessary. At the time- our fathers framed the present Constitution, the sys­tem which they adopted was probably as good as any that could have been made, and it met the wants of the times. Then the business of the State was limited; its commerce was small. Travel was done on foot, on horseback, in private conveyances, on stages, and commerce was transported on pack-mules, in wagons or on flat-boats. Such a thing as a railroad was hardly dreamed of, and there were no steamboats or monopolies or monster combinations of capital or gigantic trusts like we have at this time. The system of Courts adopted probably answered all purposes; hut there has been a wonderful change. Some of the Delegates who met here had heard of, but very few had seen a railroad; hut since then railroads have been built from one end of the State to the other, crossing and intersecting each other. Powerful combinations of capital have developed our resources, and we have commerce through-­out our State, and with nearly every other Statein the Union, and, hy means of par-, latial steamers, with the world at -large. This has increased our wealth and popula­tion, it has increased the travel, and, as a necessary consequence, has increased the business of our Courts. You And, after the adoption of the present Constitution, that it was only a few years before the Court of Appeals fell behind in its docket. There came up a cry from all over the State from litigants, and from their law­yers for some relief, and the Legislature, in order to give the relief, established the Superior Court. It was only intended to he a make-shift, or a relief to that Court. It was expected, after it had enabled thatTHE JUDICIARY. 3049
'Wednesday,] Coke. [January 28.
Court to catch up with its docket, that it would be done away with; but the busi­ness is still increasing, and it is necessary for us either to keep the two Courts, or
• establish another Court, which will do the work .done by both -the Courts. Let us
-see some of the effects that have, flown from the present system. It was not long before our Circuit Courts 'got behind with their dockets, and there was another cry for relief, and Criminal Courts]and Com­mon Pleas. Courts were established. All three of those Courts; are unconstitutional Courts, that is, npt expressly provided for :in |the Constitution,'?and only , established under a provision -whiclrgave the Legisla­ture a right to establish inferior Courts when it became necessary. What is the working of this system? You find that . some counties in this State have sufficient Courts to do their business, and others have not. There is no uniformity. The county which I repreresent, with twenty-five .thousand inhabitants, has only two terms of the Circuit (jourt a year. Scott county with seventeen thousand in­habitants has four terms, two terms of the ■Circuit Court and two of the Common Pleas Court. Some counties in the State have six terms a year, and those counties have less business and less population than Logan county has. What are some of the ■ evil effects of the present system? Take the county of Logan. A man is arrested charged with violating the laws of the
• State. He is charged with a felony He has a preliminary trial, and is held over to answer before the'grand jury. If he has wealth, or if he has influential or wealthy friends, he can give bond, and go free uu- til the meeting of the grand jury. But if, upon the other hand, he is a man with no means and no influential friends, he must go to the county jail and there remain, at the expense of the county, until the grand
Jury meets at the next term. When it as­sembles his’ case is investigated, and he is indicted. Unless he is tried at that term—
193 *
and it is seldom that a man is tried at the same term of Court that he is indicted—he must go back to jail and remain there six months longer, still at the expense of the county; and when that six months has rolled around, and his case is called again, probably the docket is crowded, and his case is put aside upon some flimsy pretext, or the witnesses of the Commonwealth in that time may have scattered or gone away, and there is another continuance, and he goes back to jail.for six months longer. Finally his case is brought up and he is tried, and in a number of cases men, who were clearly guilty, have escaped on account of the law’s delays. But suppose the Commonwealth does succeed in having a trial, and that man is convicted. By your system of Courts ■ you have inflicted a double penalty on him. You have punished him under the statute, and you have, in addition to that, punished him by having him remain from six to twenty-four months’ in confinement in the county jail. But, Mr. Chairman, on the other hand, suppose that man proves his innocence when his case is called ’ for trial, what, then, stares you in the face ? Why,.the fact that you have taken an inno­cent citizen of the Commonwealth of Ken­tucky, and, by your system of Courts, have kept him in jail for this unreasonable length of time. This is only part of th e wrong that is done. That man may have a family dependent upon him. During the time of his confinement he cannot work for them, and for their support, and it is on account of your system of Courts.
Mr. Chairman, you may adopt as fine a Constitution as any State in the Union has, and after you have adjourned, and it has goneinto force, your Legislatures may make the very best laws possible under it; but all will be useless, absolutely worth noth­ing, if you do not provide Courts sufficient to protect the citizens in their rights of lib­erty and property. Therefore, I say that this is, in my opinion, one of the gravest subjects we have had, or will have up, for3050 THE JUDICIARY.
Wednesday,] Coke. [January 28..
consideration. Take the civil cases. The system works a hardship here also; hut the property and not the life and liberty of the citizen, is affected. A man brings a suit in the Circuit Court. The Court meets, and an answer is filed, which requires a continuance of the case. He goes to the Court at the next term, and finds that the Court is behind with the docket,, and he has to remain for days with his witnesses, losing his own time, and having to pay their expenses; and then .finally the Court gets up with the docket, and some of his witnesses are out of the way, or some of the witnesses on the other side, and the case goes over until the next term of Court. All this time, is wasted, and all this money expended, because you have not given Court facilities enough. This may go on for two or three terms, or longer, before a trial can be had. There are numbers of cases of that kind on the docket in my county, which have gone over from term to term undis­posed of. There are two propositions be­fore this Convention in reference to what kind of Court of -Appeals we should have. The Joint Committee has reported in favor of one system, and the Committee upon the Court of Appeals have offered a sub­stitute for that. There are1 just two prop­ositions before us: One is, shall we have the one Court of Appeals, or shall we have two? If one will answer every purpose, why have two, which gives greater chances for prolonging litigation? What we want is.a speedy and fair trial, and we do not wish to go from Court to Court, and from year to year, to have cases decided; but we want to have them disposed of as speedily as possible. Under our present system we have Magistrate’s Courts, Quar­terly Courts, Circuit Courts, a Superior Court, and a Court of Appeals. It is pos­sible for a case to commence in the lowest Court and end in the highest. How much' money will be expended in obtaining your rights, and after you have obtained them, how much will you have left ? My
plan is to do away with the Superior Court. Do away with the County Court and the Quarterly Court system. Under your present system, what have you ? - You commence a suit in the Magistrate’s Court. Magistrates are not trained in the- law. The case is decided and then appealed; where do you appeal it ? To the Quarterly Court. You have another Court presided over, in most counties, by a .1 udge who is not a lawyer. It is not required, under our law, that he should be. Here you have provided that the poor man, whose lit­tle all is as much to Kim as the rich man’s thousands are to him, is to have his rights tried and disposed of by Judges who know nothing about the law. To _ relieve the people of all this, let us have- a sufficient numberpf Circuit Courts in this- State to do the business, and let the Judge of the Circuit Court appoint a Commissioner- in each county. Let this Commissioner- examine the accounts'of guardians, wards,, administrators, etc., and report at the next term of Court to'the Judge, and let the- Judge have supervision over his work.. Abolish the Quarterly Court, and transfer- all the cases which come under its jurisdic­tion to the Circuit Court. Let appeals from the Magistrate’s Courts he taken to the Circuit Court and there disposed of. Mr.. Chairman, I was very much entertained and instructed on yesterday by the speech of the Delegate from Fleming. I indorse nearly everything he said ; but his prem­ises do not lead to his conclusion that we should have two Courts. Every thing he- said about our Judges I sanctioned. Every thing he said about our Judges being ' better in every respect than those of Eng­land, I approve; but this does not prove- that we should have two Courts—nothing of-the kind. The principal reason for abolishing the Superior Court is, that it is a saving of time and money to the litigants,, and secures a uniformity in our decisions,, which we do not now have. As the gen­tleman from Lexington so forcibly-THE JUDICIARY. 3051
Wednesday,]
argued, two divisions of one Oourt can do as much as two Courts, and can do it much "better. It will meet with the approval of the people. As has been said, there have been numerous petitions presented to this Convention in favor of abolishing the Superior Court, and adopt­ing the plan suggested by the majority of the Joint Committee; but no petition has been sent here asking for a continuance of the Superior Court. That shows not only that the Superior Court is unpopular, but it shows, in addition, that the members of the bar throughout the State take an inter­est in this matter, and they say to you, “In our opinion we, the bar throughout the State of Kentucky, believe the Supe­rior Court Should be abolished, and there should be only one Court of final resort.” I have said what I have with no intention of wearying the Convention ; but the im­portance of the matter will excuse me for detaining it-as long as I have. The devel­opment of the past forty years our fore­' fathers could not foresee, and, therefore, did not provide for. Great combinations of capital, railroads, telegraph companies, steam-boats, and inventions in machinery of all kinds, enable more to be done now in one day than could be done at that time in a year. My firm belief is that in the future we will see much more advancement than has taken place in the past. Then, with our experience in the past, our knowledge of the present, and our hopes and great ex­pectations for the future, let us adopt such a system of Courts as will meet all the wants of the present and supply the needs of the future.
‘ Mr. McELKOY. I wish to send up three or four amendments and have them read. They indicate the position I have taken on this subject.
The amendments were read, and are as follows;
Amend the report of the Joint Commit­tee on Court of Appeals as follows : “ By striking out of section four, line one, the words 1 Chief Justice and.’ ”
[January 28.
Amend section -four by striking out of line three, after the word “ of,” the word “ twelve,” and inserting in lieu thereof the word “ eight.”
Amend section four, line fourteen, by' striking out the figures “ four thousand,” and inserting in lieu thereof “ three thou­sand,” and striking out in the fifteenth line “ and the Chief J ustice four thousand five hundred per annum.”
Strike out section five of the Committee’s report and insert in lieu thereof the fol­lowing : “ The Court of Appeals shall con­sist of four Judges; one shall be elected from each Appellate District as now exist­ing, and from the said Districts until the General Assembly .shall alter the bounda­ries thereof. The term of each shall be eight years, and shall be elected at the ex­piration of the respective term of the pres­ent Appellate Judges. . The salary of the- present Judges shall remain as now fixed by law until their present terms expire. The Judge longest in commission shall be-. Chief Justice.” .
Mr. McELROY. I had hoped that T would not feel it my duty to address this- Convention any more during the session. I have been thoroughly convinced that there has been a great deal too much speaking, and time consumed unnecessarily. We are here as the representatives of the people of Kentucky to form an organic law for. them to be governed by. We have presented before us quite a diversity of reports from the Committees on Courts. The reports seem to me all to agree in this one fact, that the people shall continue to be taxed heav­ily, as they are now, to pay big salaries to men, as I think, unnecessarily. I never have believed that we needed, that any necessity ever existed, or should ever exist, for the creation of this additional Court known as the Superior Court. I believe that originated from the feet of too volum­inous records being made by lawyers from the lower Courts, delaying business, and in that way just as it has been done in the Circuit Court system of our State. Our Circuit Courts, at the formation of our present Constitution, comprised twelve dis­tricts. The Constitution said they should
Coke—McEluoy.
3052 THE JUDICIAKY.
Wednesday,]
not exceed sixteen until the population ex­ceeded a million and a half. The lawyers in the Courts of our State went so slow, they transacted the business so carelessly and slow, just like this Convention has done, and took vastly too much time in lit­tle cases, as we are doing here, making points of order frequently and consuming time, until the dockets were so far behind in the Circuit Courts—the dockets were so crowded—that cases could not be reached. Then some lawyer in the district would go up the Legislature and he would apply for an additional Court there. We have had experience of that in my own district. A Criminal Court existed there for a number of years. Both Courts ran full terms, two weeks in counties allowed two weeks. This Criminal Court was finally abol­ished, and our ex-Governor Leslie be­came Judge in the district, and he began to transact business in such a way that he caught up with the business in the second year of his term; and in all those counties since one week has done. Our Court is running now on half time, with only one Court, whereas, if you had the two Courts, they would fill all the time for the purpose of making it appear that, they were neces­sary. I have listened to the arguments of gentlemen on this floor, and it seems from all their speeches that one of the great objects of this Convention is to dignify the bar and the profession. I would say, if you want to dignify the bar and the pro­fession, you had better do it by studying their books, and becoming more familiar with them, instead of trying to create unnecessary Courts. I am of the opinion that four Judges will transact more busi­ness, as they are now organized, than seven J udges with a walking boss, as proposed in this report of the Committee. (Laughter.) You have one Judge, who is kind of a boss over all the rest. I do not believe that is necessary. I do not believe a man who aspires to the dignity of Judge of the Court of Appeals of Kentucky wants to be
[January 28.
bossed over by any one man. I do not believe they should have it so, either. There is no necessity for this Chief J ustice from the State at large. It is another office created for the benefit of what ? Of the people? T think not. I think the four Judges will transact more business than the seven Judges will when they are divided into divisions, as this proposition is before us, two separate Courts, and, as the gentleman said, they are then independent of each other.
These three Judges one day may finally pass on a proposition, and the next day the other three may decide the proposition en­tirely different. As our Court is now or­ganized, that is not liable to take place. Four Judges each take their part of the documents, examine them, and then present them to the Court for its ratification. Now, you have the benefit of a decision of four Judges, a majority of . the Court before its decision. I think there is less liability of conflict under our present system than under these ‘diversified reports from the different Committees. And the gentleman from Lincoln, in his speech on yesterday stated that we had more cases on the . docket in the State of Kentucky in 1854 than we have now. Notwithstanding the increase of the population, there was more litigation then than now. They got along with it because they worked faster than we do now I reckon. I believe they can do it now Then twelve or fifteen Circuit Judges did the business for the State. Now we have nineteen districts and about thirty Judges doing the business. Some of the counties have two Judges when there is no more litigation going on than in other dis­tricts with only one Judge. Is it the fault of the system, or where is it? Now they propose big salaries for all of them. I say,have enough Courts and pay only what is necessary,and that is all that is requisite. Now, until after 1870, our Circuit Judges were at a salary of eighteen hundred dollars, and our Court of Appeals Judges got a sal-
McElroy.
THE JUDICIARY. 3053
Wednesday,] McElroy— Miller— McDermott. [January 28.
ary of three thousand, They transacted all the business. We have gone through a period when we had only fifty-eight dol- . larsper capita, and now we have gotten only seven or eight, and you want salaries to be higher than they were then. I am firmly fixed; I came here of the opinion, and I have remained that way, that we ought to reduce salaries. The great object of this Convention has been all along the line of retrenchment and reform. We have been talking about doing away with Jailers, and letting the Sheriffs perform their duties. We have been talking about doing away with the Assessors, and let the Justices at­tend to the assessment. They can do that for half. Curtail all expenses possible. But now we come to' a peculiar system— the Court system—and it can only be filled by less than one per cent, of the popula­tion, nobody else eligible to the offices, and are we going to have retrenchment, or arc we going to make expenses larger ? Are we going to make permanent in the Constitu­tion, these Courts that we believe ought never to have been created ? Are we going to make them permanent in the Constitu­tion and give this vast number of men these great salaries to be taken out of the pockets of the people ? If that is what we mean to do, I will say, like Dr.Gunn did when he used the technical name for Jerusalem Moke, and he said: “ Good Heavens, what a name for Jerusalem Moke!” I will say, “ what a name for retrenchment and re­form,” if you make all these Courts consti­tutional and perpetual Courts. We have 'seven Judges, and, in the reports, it is pro­posed that you keep them in there in one or the other form. And now, if we have good and able men filling the offices of Judges of the Court of Appeals from 1865 up and into 1871-2 and 3, somewhere along there, at a salary of three thousand, can not you have them yet when there is not one-third of the circulating medium in the country that we had then ? I ask intelli­gent people to pause. I have been made
to inquire whether these offices were made for the benefit of those men who can fill them, or whether they were made for the benefit of the State? If the system was created for the benefit of this class of men, then go ahead and create your offices and fasten them on the people, and require them to pay the taxes to support them.
Mr. MILLEIt. I would like to ask the gentleman a question.
The CHAIRMAN. Does the gentle­man yield for a question ?
Mr. McELROY. Certainly.
Mr. MILLER. Has not»any citizen of the Commonwealth the absolute and undisputed right to qualify himself for'any of these offices?
Mr. McELROY. Certainly; but he has not done so, and he has to be. at it twelve years before he can do it. Still, I do not object to that.
Mr. MILLER. Are you not in favor of abolishing one of these Courts?
Mr. McELROY. I am in favor of abolishing the Superior Court most assuredly. I. want to wipe that out en­tirely, and I thought the amendment, which I have drawn up and offered, would be sufficient to indicate the position I have taken. It may be necessary in the future to offer a substitute. If the report of the Committee on Judiciary had stopped when it got through the Court of Appeals, it would hare suited me better than the whole report does.
Mr. McDERMOTT. As I am com­pelled, Mr. Chairman, to go to Eort Smith, Arkansas, to-morrow on important, un­avoidable . business, I. wish, to say a few words now on the great subject under debate. The gentleman from the Third District of Louisville (Mr. Sachs), who would vote against my side, has agreed to pair with me. In the brief time at my command, I can not make an argument worthy of the name, but, in justice to the people of Louisville, you should at-least be told, what their opinion is on the present8054 THE JUDICIARY.
Wednesday,] McDermott. [January 28.
judiciary system, and the changes it needs. A large majority of the best members of the bar have sent to you, or to the Chair­man of the Judiciary Committee, a prayer for a Supreme Court of six Judges .and a Chief Justice elected from the State at large, for long terms and fonliberal salaries. The people and the press of Louisville join the lawyers in this prayer. Of course, it is not claimed that there is absolute unanimity; but the majority in favor of the reforms mentioned is too great to be denied. One of the strongest, most fre­quently used ax-guments urged in favor of this Convention was the need of a reform of the Courts, and the hope that the reform would be secured. The costs and the delays of trials in Court have become- unbearable. The cry for relief can not longer be stifled or ignored. To recom­mend, in substance, the practical continu­ance of the old system is to confess that we are unable ox unwilling to do the task we have undertaken.
The gentlemen who have gone before me have shown clearly how an intermediate Court of Appeals like the Superior Court has caused and must cause delay and un­certainty in the final decision of cases. The judgments of those two tribunals must sometimes be out of harmony, if not in di­rect conflict. Hence, no lawyer can speak with certainty of the law of any case sub­mitted for his opinion. It is unwise, more­over, to have one Court of Appeals fox- small causes and another Court of Appeals for big causes—one tribunal for the poor and another for the rich and the powerful. Some of the most famous cases in the law have grown out of disputes over small sums. Constant intercourse and debate be­tween all the Judges of the Courts.of last resort must be beneficial—must tend to produce uxxiformity and digxxity. To have petitions for a rehearing decided by the Judge who rendered the adverse judgment is necessarily vain in nearly all cases. A Chief Justice elected from the State at
large will probably be a very eminent, law­yer—perhaps the most eminent in the Coxnmonwealth—and his legitimate influ­ence over his associates will be certainly good. He can and will read all the opixx- ions rendered, and thus he will be able to detect and corx-ect any variance or conflict in decisions. Six Judges working in two divisions can certainly decide as many causes as six Judges working ixx two Courts.
I say nothing against the Judges of the Court of Appeals and the Superior Court. We all know them to be upright, able, in­dustrious men. Nobody desires to iixjure them or to displace them. Each of us holds some of them in aflfectioxx and the highest esteem. But however much we honor axxd love them, we do not .like the systexn which hampers them, and ixxjux-es their influence with the bar and the people. All of us desire that the presexxt Judges shall be given seats in the xxew Court until their i-espective terms expire; but we insist that personal liking
for the men now in office • shall
not thwart us in our efforts to elevate and dignify the bench in the future. I honor oar great professioxx and our great Judges. Eor more thaxi two cexxturies the English-speaking people have rested under an everlasting debt of gratitude to their lawyers. But in spite of all this we must not coxxclude that the bexxch and the bar of Kentucky have reached the highest point of honor aixd influeixce with the people of to-day. Evolution and improvement must still go on. - Justice at a low cost, speedy justice, justice from a high, honox-ed and uncertain tribunal must be our gift to our anxious constituents. Such a gift, more than axxy thing else, will win plaudits and votes for our Constitution and make its adoption sure. In my opinion, the Courts should be free to all and constantly open; causes should be quickly decided oxx prin­ciples as certain axxd xxniform as possible, and the Judges should be our ablest, ourTHE JUDICIARY. 3055
Wednesday,]
most learned and most honored men. To -.administer justice between man and man is to- exercise a divine attribute. In this world justice is the greatest good that men and States can attain. As Socrates said: “ Justice is like holiness and holiness is like justice; it is the ultimate cause and condi­tion of the existence of all of the other vir­tues.” Plato says it conduces most to the ■ excellence of the State. Bulwer makes the great Richelieu say:
I have re-created France : and from the ashes ■Of the old feudal and decrepit carcass Civilization on Her luminous wings Soars Phoenix-like to Jove! What was my art? 'Genius, some say—some, Fortune—Witchcraft, some.
Not so—my art was Justice !
Sir, we must give to our Courts the most patient and impartial thought, that justice may ho administered in them to the satis­faction of the bar and the people, that it may be seen clearly to he administered with wisdom and dignity, and without de­nial or delay. ■
Mr. STRAUS. It is not the character -of the men now constituting our Courts .that we are discussing. It is the system. It has been charged here that the friends of one of the systems presented were disap­pointed; that they had been piqued by some decision of the Superior Court. I can say that that is not true in my case. I have been very lucky in that Court. I have fared much better in that Court than in the Court of Appeals. I have the highest respect for the gentlemen consti­tuting that Court, and all the gentlemen who have been on that bench. I might retort to the gentleman from Henry by saying perhaps if the distinguished gentle­man who had presided over that Court so’ long was not his townsman, he would, be battling to-day for the one-Court system. I believe that firmly. I believe that his mind, as a lawyer, has been biased because •of his affection for his neighbor and his townsman. I believe that all the advocates of the two-Court system are in precisely fhe same attitude.
[January 28.
Mr. CARROLL. I desire simply to say that that could not influence me, because the hill you report and advocate provides that he shall occupy a place on the Supreme Court bench. ■
Mr. STRAUS. But that Court objects to being submerged. It wants to preserve its identity. It has some pride of opinion about it; and I have never been able to. understand why they object to the report of the Joint Committee ; but I do know and believe that it is the personal influence of those gentlemen that has gotten up this fight. I admire his loyalty to his friend and his townsman, and I admire all of these gentlemen in espousing their cause; but that fact ought to be kept in mind when we are considering the merits of this ques­tion.
Mr. HENDRICK. I wohld say to the gentleman that not a single Judge of the ■ Superior Court has ever opened his mouth to me on this subject. •
Mr. STBAUS. 1 do not say they have; but the gentleman by his flattery yester­day was evidently electioneering with them. I do not know for what purpose. (Laughter.) He paid them , a very high compliment, and I concur with him. I do not prete.nd to say that these gentlemen are trying to retain the Court or any thing of that kind. But I want to say that, so far from the gentlemen opposing the two- Court system being dissatisfied with the personnel of the Courts, that is not true; but their relationship is simply one of great friendship and great admiration for the gentlemen composing that Court.
He tells us that our system is a mere ex­periment. I deny that. I say your system is an anomaly. I challenge the distin­guished gentlemen upon that side of the question to show where a single State in this Union has, by Constitutional sanction, created two Appellate Courts—one of them which has authority to declare the law, and the other has not. I say that is an anoma­ly. You are attempting to foist upon
McDermott—Straus—Hendrick.
8056 THE JUDICIARY.
Wednesday,] Straus-
Kentuckv a system that cannot find its parallel in the history of English jurispru­dence. What is the office and function of an Appellate Court? Let us look at that- It is a tribunal to prescribe rules of law which are binding upon all the people and upon all inferior Courts, and whenever an Appellate Court fails to perforin that function, it falls short of the purpose of its creation. It is not an Appellate Court. You may call it an Appellate Court; but it is not essen­tially an Appellate Court. There must be some power in our government to prescribe rules of law; and that power ought to pre­scribe them uniformly, and it ought to be binding-upon all inferior jurisdictions. This intermediate Court is not an Appellate Court. It performs none of the functions of an Appellate Court. It prescribes no rules of authority to guide the people and to guide the bar. The objection that has come from all over the State is simply this: That lawyers and business men are unable to determine their rights, unable to know what tHe law is, because we have a conflict of opinion in th'e Appellate tribunals. The business men in the State read these opin­ions. They are published in the daily papers, and time and again have I known business men to be misled by the decisions of that Court. The gentleman from Henry says that the opposition have been able to find only three cases where the Superior Court has made a decision in conflict with the declared law of the Court of Appeals. That is not true; but grant that it is true. That is not the evil exactly. The trouble is that the Superior Court has gone along and decided case after case, and a year or two afterwards the Court of Appeals have declared the law differently from what was declared in these cases. It is not that the Superior Court .has come in conflict with the Court of Appeals, but that the Court of Appeals has come in conflict with their past decisions, and here is the trouble. I pick up the Law Reporter of eighteen
•Carroll. [January 28..
months ago, and the Superior Court has- decided so and so, whereby my client lost his property. To-day the Court of Appeals says that that was wrong. The Court of Appeals is not bound . by the Superior Court decisions. They pay no attention to them; and I must tell my client that he lost his cause . because it was not .in the Appellate Court,, and that has happened hundreds of times in this State. Because of that, the people- in this State, from one end of it to the other, have complained and are complain­ing to-day; and if there is a single question upon which this Convention has been in­structed, and fairly instructed from the people, it is the question that they want one Appellate Court. If you propose to obey the wishes of the people, to voice their well matured sentiments, then you must adhere to one Court, or fly in the face off their direct instructions. A remedy will not be afforded by the proposed method of' the gentleman. I asked the distinguished Chairman of the Committee on Court of' Appeals if the evil that the Court was Un­able to declare a rule of law would not re­main under his system, and he answered, that it would ; and there is an inherent and radical defect in the system. Let us see- whether our plan is a mere experiment.. ISTew York has our plan. The ablest State- Judiciary in the Union is that of Hew York. They have branched their Appel­late Court precisely in the way that we- propose to doit here; and I say that the- Judiciary of Hew York is the ablest in the Union. It stands along with the Su­preme Court of the United States.
Mr. CARROLL. Is it not a fact that in Hew York they have a Court of Appeals and a Supreme Court, the Court of Appeals occupying the position of our Superior Court ? *
Mr. STRAUS. But that Court of Ap­peals has authority to prescribe a rule of law, and that is the difference between, them. In all cases that stop in the Court.THE JUDICIARY. 3057
Wednesday,] Straits—Carroll—Miller. [January 28.
of Appeals of New York, the intermediate Court, and that cannot go any further, the rule declared hy that Court is authority, and you do not propose any thing of the kind in your system. But that State has branched its Appellate Court. Missouri is doing the same thing. We need not refer ■ to California. The gentleman says that none of the opinions of the California "Court were able. '
Mr. CARROLL. Have they not two Superior or intermediate Courts in. Mis­souri—one in Kansas City and the other in St. Louis ?
Mr. STRAUS. They are nothing at all ■ like ours; and there is no analogy between them. He says no lawyer can 'find a Cali­fornia opinion worthy of respect. Justice Field sat upon that bench for twelve years, and some of the ablest opinions, regarding mining questions, ever delivered upon the Continent may be found in these reports. The ablest law publishers and law writers upon this Continent live in San Francisco. The California bar has produced ornaments iii the legal profession.
Mr. CARROLL. That was before the Court was divided that Judge Field was there.
Mr. STRAUS. I am speaking with ref­erence to their reports.
Mr. W. H. MILLER. I will ask the gentleman whether Justice Field himself did not approve the plan presented here ?
Mr. STRAUS. He does. Justice Field was consulted, and his intellect helped shape that very system that New York has. The Constitutional Convention called him in and consulted him about it, and he was the man that suggested the material features of that system.
Mr. W. H. MILLER. Has he not also presented it for the consideration of the United States Senate?
Mr. STRAUS. I do not remember whether he has or not; but I know the Constitutional Convention of California, through the Judiciary Committee, invited
Justice Field before them, and that he is the man who suggested the essential feat­ures of this, system. I am not here to criticise our Courts. It is not my province- to do so. I have no desire to do so; but I could pass no greater criticism than that the gentleman read from Judge Bullitt this morning. If it be true that these unpub­lished opinions of the Court of Appeals- are more honored in the breach than in the- observance, that is a fearful state of affairs- for the Court of last resort in this State. The gentleman announces that those man­uscript opinions were not authority; but certainly the gentleman did not mean that, as a lawyer. They are authority, and they are frequently quoted by the Court them­selves in their opinions, quoted by lawyers, in their briefs, and cited as authority. Some of them may be disregarded. That is- true. He said that the Court could set aside its own decisions. That is the in­herent power of every Court of last resold,, because they have the right to overrule ’ .their own decisions; but when we speak of a decision as authority, we do not mean to say that it binds- the Court of last resort,, and that they have not the power to reverse or to overrule it. We mean that all in­ferior Courts, and all the citizens, are bound, by it until it is overruled. That is what we mean.
Let us see about the petitions for rehear­ing. Every intelligent lawyer in this State knows what complaint has been made of the present system of hearing petitions for- rehearing. One of the distinguished Judges of that Court has said himself that “ it was love’s labor lost ” to file them. Our report proposes to give the people of Kentucky some relief about one of the most important things that can come before- the Court of last resort. It is that a peti­tion for rehearing shall be considered and carefully examined, and that the best, thought of the Court shall be expended upon it. In that way alone can we get. questions determined properly and justly.•3058 THE JUDICIARY.
Wednesday,] . Askew—Straus— Carroll. [January 28.
Mr. ASKEW. While I concur with you in the end you are trying to arrive at, I do not want to do so with a reflection up­on the Court of Appeals.
Mr. STRAUS. I do not intend any.
Mr. ASKEW. Do you refer to a case where they had been asked a dozen times to reverse a decision, and they refused on the ground that a petition for rehearing in any ■class of similar cases was “love’s labor lost,” or to any case of any character?
Mr. STRAUS. I did not say it applied to same case. I do not propose to he put in the attitude of criticising our Courts. That is the only argument on the other side, that the friends of the new system are simply criticising the personnel of the Court. I have as high respect for these gentlemen as any Delegate on this floor; but I say the system has prevented those gentlemen from giving proper attention to the petitions for rehearing. That is not their fault. I say under the present system a petition for re­hearing cannot he given that attention and •that research that ought to be given to it, Let us then provide here so that we can have the sober second thought of the Court of last resort. Let us have its best labors, its best endeavors, its fullest researches up­on these important questions. The pi’esent system does not give them the opportunity to do it. It is not the fault of the men. It is the fault of the system. We provide for that, and you gentlemen do not provide •any remedy for it whatever. The gentle­man from Fleming says because we cannot •attain the ideal, therefore let us make no effort to improve. That is his argument; just bow down to the powers that be. Let it alone; it is as good as we deserve. We •cannot have an ideal republic, and let us make no effort to improve on what we have. I say the science' of government is improving as every other department of knowledge, and it is our duty here, with forty years’experience, seeing the defects in the present system, to make such improvements as the light of
experience indicates we should make, and not follow the blind doctrines of the .gen­tleman from Fleming. He tells you that this two-Court system is a tried fact. How long has it been tried ? Eight years. How did it come into existence ? By persistent lobbying around the Legislature, and I do not mean to say now by the Courts, or mem­bers of the Courts, but by their friends. It has held its life by begging and by lobbying for eight years. The great voice of the people of this State has never been behind it. It has never been demanded by the voice of the people of. Kentucky. It has only retained its life by special pleaders before the Legislature.
Mr. CARROLL. Do you not know that there was an universal demand for the establishment of this Superior ■ Court, or some other Court, at the time of its estab­lishment, because of the number of cases in the Court of Appeals undecided ?
Mr. STRAUS. There was a universal demand that that Court should go on with its work. , That was the demand; but the people failed to take into consideration one fact, that calamity after calamity had fallen upon that Court. Men had become sick and unable to discharge their duties for years at a time. Men had died, and that was the main reason that the Court fell behind for years. It was no fault of the Judges. They worked well. They were patriots, but the hand of Providence had prostrated first one and then the other, and for that reason, and for that reason mainly, the Court fell behind. The people at large did not know what a Superior Court was; never dreamed of it. It was tied on to the Court of Appeals after unusual efforts in the Legislature. It was renewed in 1885 by the same efforts. It was renewed in 1889-90 by the same efforts; and to-day who is asking that it be retained? What bar in the State has petitioned it? What county in the State has petitioned that it be retained and fastened upon the organic law of the State—a mere Board of Arbi-THE JUDICIARY. 3 0 5 9
Wednesday,] Straus—Blackwell. [January 28.
tration, a Court without authority, an anomaly in the history of jurisprudence ?
Gentlemen, I will not he placed in the position of criticising the personnel of the Courts, because I yield to no man in my respect for the Judiciary of this State. I‘ have no fault to find with them. My fault is all with the system ; and let us make an effort to correct the defects in the system, and let us do it courageously, and let not the gentlemen, who are special pleaders, and friends of certain gentlemen, undertake to say that we are trying to discredit the Judiciary. That is an unfair argument, and for one I will not he put in that posi­tion.
Mr. BLACKWELL. I shall occupy the attention of the Convention hut a few moments. The plan proposed by the joint report for a Court of Appeals is, in its main feature, that of California. I have taken some pains to look into the workings of that plan in California. The first Court held in that State under the depart- ■ment plan was begun ifi November, 1879. In 1885 three Supreme Court Commis­sioners were appointed to assist the Su­preme Court in the discharge of its duties and in the disposition of the numerous cases then pending in said Court and un­determined; the term of office of those three Commissioners being four years. In 1889, immediately upon the expiration of office of said three Commissioners, five Com- miesioners were appointed pursuant to an act of the Legislature of that State, to assist the Supreme Court in the performance of its duties. So that in California to-day, there are seven Judges and five Commis­sioners, twelve in all, engaged in deciding cases pending in the Supreme Court of that State. I want to impress these facts upon the Convention, and, I repeat, that the department plan for a Supreme Court was adopted in California in 1879 ; in 1885 it was found necessary to appoint Commis­sioners to aid the Court in the disposition of cases pending in that Court. Three
were appointed in that year, and at the expiration.of four years after the appoint­ment of said three Commissioners, two more were added. Eighty-three California Beports shows that between January 31, 1890, and May 3d, 1890, a period of a little over three months, the seven J udges and five Commissioners decided one hundred and thirty-six cases. Taking the work done, during the period specified, as aver­age, and allowing a vacation of two months, there would he decided by the seven Judges and five Commissioners four hundred and fifty cases. Now, the least number of cases ever decided in one year by the Court of Appeals and Superior Court is seven hundred. And it must be borne in mind that the California Chief Justice sits with either Department and writes opinions, just as the other Judges do. If those facts are true, and they are, it seems to me that this Conven­tion should be very slow to adopt a plan which makes so bad a showing in the only State in which, so far as I know, it has been tried. It is fair to assume that the California Judges and Commissioners are as industrious and as learned as are the Judges of other States, and that therefore the merit of appointing Commissioners was due to the imperfections of the system and nothing else. The seven Judges in Kentucky are catching up at the rate of fifty cases per year, while California, with about one half the population of Kentucky, requires seven Judges and five Commis­sioners under the plan of a Supremo Court adopted by that State.
The department plan for a Court of final resort is, in Kentucky, an experiment, pure and simple. "We were not sent here to put experiments into the organic law of the State. Experiments are dangerous in Con­stitutions, and never 'should be tried except upon the clearest necessity. If the Gen­eral Assembly pass a bad law at one session, it can be repealed at the next; but the case with the fundamental law is different. I30C0 THE JUDICIARY.
Wednesday,] • Blackwell.
[January 28/
believe experience has shown that a Court composed of three or four good Judges is quite as apt to decide a case properly as it would if composed of a much larger num­ber. We had but three Appellate Judges in Kentucky for a long time. A fourth was added, not that better work might be done, but that more work might be done.
If, then, as many as seven Judges are to be employed, it would seem best to divide them into two separate Courts, giving to the Court which is to be ultimate authority, four Judges, and making the other three Judges an intermediate Court, which, by reason of their importance, are taken direct­ly to the Court of Appeals, will, probably, be as well decided by the four Judges as if they had been heard by the seven; and the judgment of the Superior Court, in any case which may find its way from that Court to the Court of Appeals, will aid the latter Court very much in the proper dis­position of it. Besides, the fewer Judges composing a Court, the greater will be the feeling of individual responsibility and dis­position to do thorough work.
I have heard but two objections urged against the Superior Court: one is, that its decisions are not authority; and the' other is, that no appeal can be taken from its judgment in certain Cases without its own consent. These- two objections the report of the Committee on Court of Appeals remedies. If that report should be adopted, any defeated party will be able to take, with very little additional expense, the sense of the Court of Appeals upon his case. An appeal from the Supe­rior Court to the Court of Appeals will, of course, occasion some delay, but it must be remembered that it is not in the power of the human mind to devise a perfect system of jurisprudence.
The Superior Court was first tried as an experiment. I contend that it has done excellent work, and should be retained. There can be no complaint of the dual sys­tem, as it is called, so fa.r as the dispatch of
business is concerned, since the two Courts are catching up at the rate of about fifty eases a year. If individual cases can be cited in -which, by means of the present p system, wrongs have been done to parties . in their property or persons; or if cases can be cited which have established bad prece­dents or overturned good ones, the enemies of the system ought to produce them.
Such, briefly, are my views on this very important question. I am somewhat sur- 1 prised at the statement of the gentleman from Bullitt that the Superior- Court was- established by lobbyists at the Legislature. You know, and I know, and every lawyer in this body knows, that the Court of Appeals was overwhelmed with business; that some relief had to be given and pro­vided, and that relief was the adoption of the Superior Court; and when its existence expired, it had to be continued on account of the business in the Court of Appeals. The Court has done good work; and I say if we organize this department Court we will be in the same condition as California. "We will have Commissioners in less than three years; we will have to give Com­missioners more, and then -we will have a Court of twelve. I say this is an experi­ment. It is an experiment pure and sim­ple in Kentucky. In California these facts exist, and I am sure that the people of Kentucky do not want to be clamoring, in five or six years, to have Commissioners, and then afterwards additional Commis­sioners appointed to assist. in the work. Upon the point that the decisions of the Superior Court are not authority, I will say thatjin cases involving over $2,000, the party, as a matter of right, can appeal it to the Court of Appeals. If he fails to take that appeal, as he may do, is it not very persuasive that he is of opinion that the law has been settled, arid the case properly decided? As to the case referred to by the gentleman from Lexington, I do not know what the law in that case was; but the Superior Court, as a mat-THE JUDICIARY. 3061
"Wednesday,] Blackwell—Twymak. [January 28.
ter of course, will follow studiously tlie Court of Appeals. We can in the . nature of things have hut one Court of final resort, and I say that when the law is de­clared, it ought to be declared by a Court, . not by a Department of the Court; and what does this joinc report propose? It was very forcibly argued yesterday, by the Delegate from Franklin, the Chief Justice, the Walking Boss, as somebody terms him has nothing at all to do in the way of de­ciding cases. One department may declare one way one day and the next department another way the next day; and then if the Chief Justice is applied to, he will have to reconcile the differences as best he can. I say that I do not want a Department Court, and I know the people do not want it. I am just as certain that we will he ap­pointing Commissioners as they did in Cali­fornia in a very few years as of' any thing, and that I do not want; and experience is worth a great deal; and speculation should not he indulged in in matters of this im­portance. I say that the .system advocated by me has been tried in Kentucky, and it is a success. It has met the wants of the people. It has worked well and benefi­cially ; and why do we want to try experi­ments, which are hazardous always, and es­pecially' so when placed in the organic law of the land? If the gentlemen want to reject the Superior Court, let them devise some. other system than ’ the Department Court.' I say a Department Court is no Court at' all; that when the law is de­clared it should be declared in a manner as to command the respect of the people and of the bar. Will the people and the bar respect a decision that comes from a part of the Court? No. A Court of last resort should be a Court, and not a part of a Court; and the worst objection that could be found with the report of the Joint Committee is, that it has been tried in Cali­fornia, and its results have been as I say; and I think the Convention will be slow to
adopt a plan which has been a dismal fail­ure in the State where it prevails.
Mr. TWYMAN. I do not desire to de­tain this Committee but a very short time in giving my reasons for supporting the report from the Joint Committee. 1 have listened carefully to the discussions on each side. They have been able, instruc­tive and interesting, and I have taken par­ticular interest in those which insist upon the Judicial system remaining as it is. But I have failed, so far, to hear, any good reason why I should change .my intention to vote for the one Court-system. We have been told that comparatively few appeals—perhaps twenty per cent, of the cases tried—are appealed, or applications have been made for appeals, to the Court of Appeals, and it has been said that that is a reason why we should retain that Court, because of its many cases in which no complaint has been made. That objec­tion has been answered—as I think success­fully answered—but I desire to add this one further reason why more applications have not been made for appeals, and it is this: that each lawyer who conducts a case, and finds himself defeated in the Superior Court—granting him some credit for hav­ing some intelligence and knowledge in regard to his case, and capable of deciding the point as to whether there is novel questions in it—and when he is asked by his client as to whether there is any hope of his getting an appeal to the Court of Appeals, he replies that there is nothing novel in it, and consequently there is no hope of getting an appeal. His client, acting upon hi^ opinion, makes no applica- . tion. Consequently, in onlyT twenty per cent, of the cases, as we are told, are appli­cations made; but it is not because the defeated party is satisfied, but it is simply because he has been in­formed by his attorney that there is no hope of his getting away 'from that de­cision. If it was to be left to the litigant to decide the question for himself, hun-3062 THE JUDICIARY.
"Wednesday,] Twyman—Blackwell. [January 28.
dreds of petitions that have not been asked for would have been filed. Again, I insist that the Superior Court serves, in one point of view, as an obstruction to the ends of justice, in this, that frequently cases that have been appealed from that Court to the Court of Appeals have been reversed. I have in my mind the case of the Commonwealth vs. Corneilison, which ease was brought to the Superior Court, and that Court re-, versed the judgment of the lower Cour