amount of all public building and guaranty warrants held by them, and that such a ruling was made by such officer or officers at the same time the bonds were sold, and the contention is made that this is a

repudiation. In this connection a partisan attack is made on the governor of the state and refers to some newspaper report as to what he might have said relative to the act of some judge in holding an act of the legislature unconstitutional. I gave to the press no interview relative thereto, but a purported interview from me relative thereto appeared in the press: I did say that no judge should hold an act of the legislature unconstitutional on an ex parte hearing. The preliminary injunctions involving the constitutionality of an act of the legislature should issue to preserve property rights and hold matters in status quo until a full hearing could be had and that the attention of the next legislature would be called to such matter for proper consideration in legislation was indicated by me.

Judges Must Be Careful.

The federal congress has legislated on that identical question. I further said that where a judge wilfully suspended a law in toto and held it unconstitutional without a hearing that he ought to be removed from office, and that is still my contention. However, I am aware that a judge sometimes, with good intentions, in the hurry and rush of business, not recognizing the full import of an order may sign the same to that effect, but when the same is called to his attention the order is modified so as to merely preserve rights until a full hearing is had.

In the Oklahoma Banker it is further said:

"It is not denied that the governor and his associates may be right on the legal phases of the question. There are many who believed when the building warrants were exempted that the act was unconstitutional, and the same view would apply to the guaranty fund warrants. But that does not change the immorality of the act."

Tax Evader a Wrongdoer.

This board is not seeking to have either the building or guaranty fund warrants taxed, but to have the shares or capital stock of the banks taxed. A person

seeking to have property exempted from taxation, when he has reason to believe that such exemption is contrary to the constitution and laws of the state, though the state officer may erroneously permit such exemption, such act of the tax evader is against public policy and the tax evader himself commits an immoral act.

The members of the state board of

equalization are merely seeking to discharge their duties under their official oaths. The banker that is seeking the exemption as a holder of these securities, earnestly believing that such is the law, is not guilty of an immoral act, but a banker who seeks to do it, believing that the law is unconstitutional, is treading on dangerous ground when he talks about morality.

Men of business and affairs who call themselves bankers and especially when they conduct a bankers' journal, should co-operate with the state officials who are seeking to enforce all the laws, and render all their property for taxation, according to law, and not launch into a partisan, half anarchical tirade against officials seeking to faithfully discharge their public duty. To read such an articie some would think that there was a hidden motive behind it, and that there was some partisan advantage sought to be gained, but I want to say to the bankers of Oklahoma, who are supporting and applanding such attacks in that journal, that such attacks are liable to prove a boomerang. The editor of the journal talks about good morals. Yet on page 50 of the same issue he makes reference to a recent decision of the supreme court of the state construing a usury statute wherein he states:

"This decision is sweeping and farreaching in its effect and came as a distinct shock to the banking interests of the

state.'

Usury Immoral.

Why should there be a distinct shock unless there had been to a large extent the practice of usury and why should he deprecate the conclusion reached in this cast by the supreme court unless he would be glad to see the practice of usury continued. Through all the ages the practice of usury has been denounced as immoral and wrong. When the editor of the Oklahoma Banker wants to see property ex

empted from taxation he talks about morality. When he wants to see the practice of usury permitted he is silent on the doctrine of morality. The fact is, when anyone puts himself without the pale of the law, whether he is editor of a bankers' journal or a haranguer on the streets, he is a dangerous citizen.

What we are trying to do is to follow the law, and to cause this property put on the tax rolls. This was not done until the attorney general, the chief law officer

of the state, ruled that all bank capital and all the shares of such capital stock was taxable, and I believe that his ruling is right and the entire board of equalization so believes. That being the case it was our duty to cause it to be put on the tax rolls and if the bankers holding these securities are right in their contention the courts are open to them to have the question as to this exemption judicially determined and whatever is decided by the courts this board will faithfully follow.

Statement and History of Act.

Pursuant to a request of the editor of the OKLAHOMA LAW JOURNAL, I will give my views with reference to the recent act of the legislature requiring an advanced cost deposit of $40 in causes filed in the Supreme Court of this state. While our present governor during the primary election campaign contended that more of the burden of conducting the courts should be borne by the litigants, the question was not mentioned in the state democratic platform, but in his first message to the legislature, under the heading "Revenues to Be Derived from Departments," the governor, among other things, said: "I accordingly recommend that a docket fee be taxed in the sum of twenty-five dollars as a part of the costs in every such case to follow the result of the case," etc. The docket fee was $3. The governor's recommendation was enacted into law March 5, 1915, and is found in section 5 of chapter 87, session laws of Oklahoma 1915, providing for an advanced cost deposit of $40.00, $25.00 of which shall be for "filing, indexing and docketing each cause." Certain members of the legislature voted for the increased cost deposit because it was an administration measure, some in order to make the clerk's office a source of revenue, some thinking that the poor litigants would be benefitted, and others in hopes of reducing the number of appeals. We should assume that all voted for what

they thought would be for the public good.

Section of Act Unconstitutional The general purpose of the act is the creation of the Supreme Court Commission. Section 5 thereof has reference to costs required to be advanced in causes thereafter "filed in the Supreme Court.” The Supreme Court had been created by our constitution. Under section 57 of article 5 of our constitution providing that "every act of the legislature shail embrace but one subject," etc. Section 5 of said act, in my opinion, is unconstitutional.

Entire Act Unconstitutional.

Also, there are grave doubts as to whether or not the entire act is constitutional. Our constitution makes our Supreme Court the highest judicial authority in our state for the disposition of civil actions. The act in question gives the governor authority to appoint the members of the commission with the consent and approval of the Supreme Court and in section 6 thereof it is provided that "The commissioners herein provided for shall be subject to removal at any time by the governor." This act, I believe, is clearly in conflict with article 4 of our constitution, which provides that:

"The powers of government of the state of Oklahoma shall be divided into three separate departments: The legislative, executive and judicial; and except as provided in this constitution the

legislative, exccutive and judicial departents of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

Our constitution, which is the product of deliberate thought, limits the element of sovereignty known as the judicial. Of all governmental instruments, our constitution is the most solemn and powerful and until it is changed by the source of all power and authority in our government, the people themselves, its mandates are supreme and should be obeyed. This view with reference to the appointment of Supreme Court Commissioners by the chief executive officer, and especially being subject to removal by him or the appointment thereof by the legislature, has the judicial sanction of some of the highest courts of our land and is well founded in reason, logic and law.

State of Indiana, er rel. Alvin P. Hovey v. William T. Noble et al., 118 Ind. 350; 4 L. R. 101, 21 N. E. 244, 10 Am. St. Rep. 143. State v. Mount, 15 Ind. 679, 51-N. E. 417, 52 N. E. 407. Wright v. Defrees, 8 Ind. 298. Held, in the case of People of State of California ex rel. v. R. Y. Hayne et al., 7 L. R. A. 348, that Supreme Court may appoint commissioners. Kent. Comm. & Cooley,

Const. Lim.

The authorities hold that "neither the executive nor the legislative can select persons to assist the courts in the performance of their judicial dutjes." The doctrines that the powers of the three departments of government are not merely equal, but are exclusive in respect to the duties assigned to each and are absolutely independent of each other, has been asserted and enforced again and again and are found in the works of every philosophical writer on government. Montesquieu, Spirit of the Laws, 33; Lieber, Civil Liberty, 154; Ingersoll, Fears for a Democracy, 23; Woodrow Wilson, Congressional Government, 12-36; 3 Burke, Works, 110; 1 Bryce, American Commonwealth, 31; 2 Bryce, American Commonwealth, 429.

The teachings of Jefferson and the spirit of democracy are opposed to centralized power and favor the three departments of our government being

equal, co-ordinate and independent of each other and exclusive and supreme in their constitutional domain.

Of course, while I think section 5 of said act is very unpopular, I do not assume that any one will want to question in the courts the constitutionality of the entire act.

Fundamentally Wrong-Strikes
at Sacred Rights.

Nothing of a temporal nature is more sacred than our rights to life, liberty and property and the proper enjoyments thereof. They are common rights. When the humblest member of society is denied some right because access to the courts is made too burdensome, the rights of the other members of society

It is

to that extent become less secure. not enough to say that a poor person can file a pauper affidavit and prosecute their cause without advancing costs, for such course causes humiliation and many would rather be deprived of a just right than suffer such abasement of pride. Sec. 5 of Art. II, of our constitution provides that:

"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and denial, delay, or prejudice." justice shall be administered without sale,

See citation of authorities under this section in Williams' Constitution.

Since our constitution assures us of our "inherent right to life, liberty, the pursuit of happiness, and the enjoyments of the gains of our own industry" and provides that "No person shall be deprived of life, liberty or property, without due process of law," should we consider its wholesome provisions as merely catchy phrases and enact laws which deprive some of rights which it in spirit and intent guarantees? Since our constitution provides that our courts shall be open for "speedy and certain remedies" and that "right and justice shall be administered," etc., can it be said that regulations imposing an advance cost deposit of $40.00 as provided in said Act, as an incident of judicial proceedings in causes appealed to the Supreme Court, are

unreasonable, and, if unreasonable, that said Act is constitutional?

Has Not Stopped Appeals.

The law requiring the advance deposit of $40 went into effect March 5, 1915. During the six months prior thereto 108 cases were filed in the Supreme Court and from the date said Act went into effect to Sept. 11, 1915, six months and six days, 450 cases were filed in the Supreme Court, showing an increase in the number of cases filed instead of a decrease as contemplated would be the result of said Act.

Theory "Let Dancers Pay the Fiddler." Some who supported the bill to increase the cost deposit, did so on the theory that, figuratively speaking, the "dancers should pay the fiddler," unmindful of the fact that courts are for the common protection and that a few whose rights become involved should not bear all of the burden when society in general is concerned. I have frequently replied to such argument by saying if such theory should be applied in other directions where society is concerned, a man who has much of this world's goods and has probably been elevated to positions of honor and trust in our government, if he has no children, should pay none of the school tax. All are concerned in justice being administered by the courts. All are concerned in our schools. The principles of common interest is applicable to each. We should not assume that the litigants on both sides are always wrong. It is the general rule that one party to an action is trying to protect their just rights. As government is but an aggregate of individuals and as we should recognize that law of society that "no one is sufficient unto themselves," all are concerned in seeing that each gets their just rights.

If the docket fee had not been inIcreased, the clerk would have turned over to the state about $15,000.00 per year over and above the running expenses of the clerk's office. Probably in no other state is it intended to make the clerk's office a source of revenue.

Of course, while the law remains in force, the clerk will try to collect all fees contemplated by the same, and when the $10.00 required as an advanced deposit,

is exhausted, additional deposits will be called for. In this connection. I may say that some attorneys do not understand that said deposit is for the clerk's costs only, but fall into the error of thinking the sheriff's fees, etc, can be paid out of the same.

Injustice to Poor Man.

Some voted for the increase in the cost deposit, thinking that the results would be favorable to the poor man. While the tigants pay the costs, the lawyers of the state appear to be almost unanimous in their condemnation of the law. I have heard two who favored the law, one of whom had something to do with the passage of the bill and the other is an attorney for one of our big railroad systems. The corporations are always able to put up costs and frequently they secure a reversal of judgments rendered against them. In such cases, it would be burdensome for a poor man to pay the costs incident to such appeal before he could have a retrial of his cause. There would be cases in which a poor man would be deprived of some right because of the deposit required, but such would not be the case as to any corporation. Local corporations, such as banks, with their business relations, have as much chance as the poor man to secure a judgment in the first instance.

Only a small per cent of the appeals taken are by foreign corporations and they will not suffer the loss of any right because of an increased cost deposit. except the mere burden of the increased cost deposit over what should be re

quired and this burden ultimately is shifted by corporations to the people as part of the cost of production or operation.

What Our President Says:

In concluding. I wish to say that my thoughts on the subject under discussion are aptly enshrined in the wise suggestions of that profound student of history and peerless statesman, our president, who, at the Jacksonian Day Banquet on January 8th, 1915, in discussing our judicial procedure, said:

"I do know that the United States in its judicial procedure is many decades behind every other civilized government in the world; and I say that it is an immediate and an imperative call upon us

to rectify that, because the speediness of justice, the inexpensiveness of justice, the ready access of justice, is the greatest part of justice itself. If you have to be rich to get justice, because of the cost of the very process itself, then there is no justice at all. So I say there is another direction in which we ought to be quick to see the signs of the times and to help those who need to be helped."

UNANIMITY IN VERDICTS.

In view of the fact that Oklahoma voters are to vote next year on an amendment to the constitution reducing the number of jurors in certain cases and providing that three-fourths of the whole number of jurors in criminal cases less than felonies shall have power to render a verdict, the following observations on “Unanimity in Verdicts," taken from the effete east and the ultraconservative south should prove of more than ordinary interest to our readers:

a

"The New York Lawyers' Association has voted almost unanimously to recommend the abandoning in civil cases of the complete agreement among jurors and to allow a majority of the jury to find a verdict, says the Virginia Law Register. At the first blush such change in the present system seems revolutionary and indeed it may be so considered without in any way detracting from its merits. But when we come to look at it with cool and calm deliberation such a change seems, for more reasons than one, in every way advisable. For a long time in the state of Virginia the number twelve was a sacred one and lawyers held up their hands in holy horror at the iconoclastic creature whɔ dared to even propose a change in that sacred number. And yet we have reduced the number to five in cases cognizable by justices of the peace and seven in cases not so cognizable, and we have even gone so far as to provide that by consent of parties three may constitute a jury and two of that three render a verdict. Since this change we have not noticed that the pillars of the temple of justice have been in the slightest degree shaken and lawyers have almost entirely forgotten their violent opposition to the change. Unanimity in civil cases is just

about as useless a fetich as the sacred number twelve and the sooner we "tear that idol from its throne" the better for the lawyers, litigants and the courts.

The absurdity of this unanimous verdict is about as clearly demonstrated as is possible by the fact that we do not insist on unanimity in the courts. Two out of three judges in the circuit courts of the United States; five out of nine in the Supreme Court of the United States; three out of five in our own Supreme Court of Appeals, decide questions involving vast amounts of money and most intricate propositions of law, going to the very foundations and basic principles of our jurisprudence, and we accent their verdict unhesitatingly. And yet m cases involving twenty-five dollars we allow one obstinate or stupid fellow to clog the wheels of justice, put the Commonwealth and litigants to costs almost as great as the amount in controversy, and consume the precious time of the courts with second trials. If we allow by consent two out of three men to decide a case, then why make that consent necessary when five or six out of seven agree as to the right of a case? Logic and analogy-good, hard common sense -demand that this reform should take place. We have never yet heard an argument in favor of unanimity which amounted to anything except as to the traditional claim that it was the correct thing from an ancient custom. have broken away from the sacred number of twelve. Cannot our law makers break away from the other traditions and allow justice to be done in the most expeditious and reasonable manner?

But we

Within the last month we saw a case in court involving the enormous amount of $17.25 appealed from a magistrate. Five good men and true were sworn to try the issue joined. Two able lawyers -their combined fees must have been double the amount of the claim-wrangled three hours over the case. The jury remained out two hours and came back with a disagreement. The judge mildly suggested that the attorneys allow a majority of the jury to settle the case. One was willing, the other not and so the case went over, to accumulate costs and to consume another five hours. The joke of the matter is that four of the