"1. The whole judicial power of each state, at least for civil causes, should be vested in one great court, of which all tribunals should be branches, departments or divisions. The business as well as the judicial administration of this court should be thoroughly organized so as to prevent not merely waste of judicial power, but all needless clerical work, duplication of papers and records, and the like, thus obviating expense to litigants and cost to the public. "While the whole judicial power should be concentrated in one court, the court should be constituted in three chief branches: (1) county courts (including municipal courts), having exclusive. jurisdiction of all petty causes, all of them to constitute in the aggregate one branch, but with numerous local offices where papers may be filed, and as many places for hearing of causes in each county as the exigencies of business may require; (2) a superior court of first instance (to be called by some appropriate name), having a defined, original, exclusive, general jurisdiction at law, in equity, in probate and administration, in guardianship and kindred matters, and in divorce: this court to have numerous local offices where papers may be filed and at least one regular place of trial in each county, and to be divided into at least two, and probably three, divisions-(a) one for disposition of actions at law and other matters requiring a jury or of kindred nature, (b) one for equity causes and (c) one for probate, administration, guardianship and the like. The first might be called the law division or the common pleas division, the second the equity or the chancery division and the third the probate division. Possibly many jurisdictions would desire to unite the first two, but it seems to the committee that there is much to be said for separate administration of equity, provided the courts are free to administer whatever relief the case warrants and the distinction is made one of practical administration only. Divorce would be relegated generally to the second division, though there is much to be said for committing it to the third. The third branch would be a single ultimate court of appeal. All judges should be judges of the whole court. They should be assigned in some appropriate way to the branch and the division thereof, or the locality in which they are to sit. but should be eligible and liable to sit in any other branch, or division, or locality when called upon to do so. "Supervision of the business administration of the whole court should be committed to some one high official of the court who would be responsible for failure to utilize the judicial power of the state effectively. He should have power to make reassignments, or temporary assignments of judges to particular branches or divisions or localities as the state of judicial business, vacancies in office, illness of judges or casualties may require. Likewise, he should have the power, subject to general rules, to assign or transfer causes or proceedings therein for hearing or disposition according to the condition of dockets for the time being, and it should be his duty to see to it that the energies. of the judicial department are employed fully and efficiently upon all business in hand. What this official of the whole court does for the general supervision of its affairs, should be done for each branch and each division, and where there are large cities, for each locality, by some official specially charged with this duty and responsible for the efficient and business-like conduct of its affairs and disposition of causes upon the dockets. This official should be a judge, not a clerk, and the responsibility laid on him should be such as to guard against abuse of his office and insure efficiency. "In like manner the business administration of the court should be organized. The whole clerical and stenographic, force should be under control and supervision of a responsible officer and an officer in each branch, division, and, if necessary, each locality, should have a like duty and a responsibility for efficient conduct of business commensurate therewith. The office in each locality could be an office for filing papers for the whole court and every branch and division thereof; the papers to be kept there when required in the locality, or transmitted to the proper office elsewhere. Legislation should not attempt to lay down details upon this subject. The general principles should be settled, and the remainder should be left to rules of court to be devised, altered and improved as experience points out the problems to be met and the best solutions thereof. "In dealing with the subject of expense in the administration of justice, this subject of organization of the business side of the judicial department is of especial importance. We have carried decentralization of courts to such an extreme that in many jurisdictions the clerks are practically independent functionaries over whom courts have little real control. In some jurisdictions the clerks of supreme and appellate courts are elective officers. It is a pretty general practice to have an elective clerk of the superior court of general jurisdiction (by whatever name called) in each county. Each clerk is not merely, to a considerable degree, independent of effective judicial control, but he is wholly independent of every other clerk. No one is charged with supervision of this important branch of the judicial system. It is no one's business to make this part of the system effective, to obviate waste and needless expense and to promote improvement. The fee-system has often tended to make earning and collection of fees one of the chief objects. which engrosses the clerk's attention. There is much unnecessary duplication and recopying of papers; judicial records are needlessly prolix, and hence unduly expensive. These and kindred matters may be met best by organization of the purely business side of the courts, and providing for competent and efficient supervision thereof. "There is room for difference of opinion, no doubt, with respect to the proposition to include the tribunals for dispatch of petty causes in the scheme for unification of the judicial system. It was the original plan of those who drew the judicature act in England to incorporate the county courts in their scheme. (Report of Judicature Commission, 1869, p. 13.) This portion of their plan failed of adoption. But the reasons in support of it are most cogent. The municipal court of Chicago has shown that it is perfectly feasible to administer a much higher grade of justice in petty causes than that dispensed by justices of the peace without resorting to the cumbrous and expensive machinery of our superior courts of record. The system of committing petty causes to justices of the peace, subject to appeal to some superior court, and review of its judgment by a court of appellate jurisdiction, is too often a denial of justice to the weaker litigant. It compels men to forego just claims against those who can afford to litigate to the end, because of the delay and expense involved in asserting them. Petty causes demand good judges no less than causes involving larger sums. The judges to whom such causes are committed ought to be of such caliber that but one review should be necessary, and that confined to questions of law. The original reason for our present system was the desire to bring justice to everyone's back door in his own locality at a time when communication was slow and difficult. Under present conditions of travel the result may be reached in another way. A county judge, or a number of county judges, may go to every part of a county to try causes and dispatch business, and there may be as many local offices for filing papers and beginning causes as business may require. Nor will such plan involve undue expense through requiring additional judges. Our present system involves waste of judicial power to such extent that more judges are now employed in many jurisdictions than a unified and thoroughly organized system with a simplified practice would demand. The county judges would be eligible to serve in any branch or division where their services for the time being might be demanded, and, on the other hand, judges assigned to other work might be used, whenever necessary, to assist in disposing of petty litigation. "It may be objected, also, that the scheme proposed is at variance with our ideals of home rule and local independence. But a loose. judicial organization is not necessary to home rule and local administration of justice. Organization of the courts, and, above all, organization of the business of the courts with a view of making the most of the judicial machinery, will permit judges to go to each locality where business awaits them, dispatch it, and be sent somewhere else in accordance with an intelligent plan and under the direction of someone whose duty it is to see that the work of the court is provided for and disposed of. "The advantages of such an organization of the courts, of judicial business and of the clerical and administrative work of the courts are nine: "(1) In the first place, it would make a real judicial department. The federal department of justice, under the headship of the attorney general, gives to the general government something in the line of what is proposed. But it is not in accord with the genius of our legal institutions that one who practices in the courts should be head of a department comprising the courts and charged with the supervision thereof. The several states accordingly have courts, but they do not have any true judicial department. "(2) It would do away with the waste of judicial power involved in our present system of separate courts with hard and fast personnel. Where judges are chosen for, and their competence is restricted to rigid districts, or circuits, or courts, or jurisdictions, it is a familiar consequence that business may be congested in one court while judges in another are idle. Devices for exchange of judges, or invitation to sit in another district, may sometimes mitigate this evil to some extent, but they do not reach its source. In this respect the federal circuit courts and circuit courts of appeals are a model of flexible judicial organization. The judicial department should be so organized that its whole force may be applied to the work in hand for the time being, according to the exigencies of that work. "(3) It would do away with the bad practice of throwing causes out of court to be begun over again, in cases where they are brought or begun in the wrong place. They may be transferred simply and summarily to the proper branch or division, or rules may provide that the cause may be assigned at the outset to the place and the division where it belongs, and no question of jurisdiction of subject matter will stand in the way. "(4) It would do away with the great and unnecessary expense involved in transfer of causes, obviating all necessity of transcripts, bills of exceptions, certificates of evidence and the like, and permitting original files, papers and documents to be used, since each tribunal, as a branch or division of the whole court, may take judicial notice of all files, papers and documents belonging to the court. "(5) It would obviate all technicalities, intricacies and pitfalls of appellate procedure. An appeal would be merely a motion for a new trial, or for modification or vacation of the judgment before another branch of the same great court. It would require no greater formality of procedure than any other motion. "(6) It would do away with the unfortunate innovation upon the common law which obtains in many states by which venue is a place where an action must be begun, rather than a place where it is to be tried, so that a mistake therein may defeat an action entirely instead of resulting merely in a change of the place of hearing. This innovation is especially unfortunate when it is applied to equity causes, where originally there was no venue. If all tribunals are parts of one court, there need be nothing beyond a transfer of the cause. All proceedings up to the date thereof may be saved. "(7) It would obviate conflicts between judges of coordinate jurisdiction, such as unhappily obtain too often in many localities under a completely decentralized system, which depends wholly upon the good taste and sense of propriety of individual judges, or the slow process of appeal to prevent such occurrences. But a short time since it became a matter of comment and criticism in one of the great cities of the country that judges, who were supposed to be trying causes with juries only, would take up divorce cases and dispose of them out of the usual order, although they were supposed to be heard only by the judges engaged in hearing equity causes. As most of our courts are organized at present, there is nothing to prevent any judge trying any cause pending in the court he pleases, however foreign to the work he and his colleagues have agreed he shall attend to. "(8) It would allow judges to become specialists in the disposition of particular classes of litigation. The prevailing system of rotation is unfortunate. Usually where there are a number of judges they take up in rotation civil trials with juries, equity causes and criminal causes. It is becoming unusual for a judge to be kept continuously to any one class of causes so as to become thoroughly familiar therewith. This specialization was the real advantage of separate courts of law and equity. Instead of separation between law and equity in procedure, the desirable thing is specialization in administration. The way to obtain this is to organize the courts in such way that judges may be assigned permanently to the work for which they prove most fit. So long as they make the assignment by agreement among themselves, the tendency to follow the line of least resistance will result in the unfortunate practice of periodical rotation. "(9) Finally, it would bring about better supervision and control of the administrative officers connected with judicial administration, and make it possible to introduce improved and more business-like methods in the making of judicial records and the clerical work of the courts. "The foregoing plan for unification of the courts and simplification of judicial organization would require constitutional amendments in each jurisdiction. Hence the committee do no more than submit it to the Association in order that attention may be called to the advantages of such an organization. Proposals for re-organization of the judicial system are now agitating in several states, and it seems desirable to record the opinion of the committee as to the lines along which reorganization should proceed." The few elements in the present Illinois judicial system tending toward unification have already been pointed out. Recapitulated, these elements are the following: (1) In case of disagreement among the circuit court judges as to the counties in which they are severally to preside, the chief justice of the supreme court shall assign the judges to such counties in their circuits as he may determine.3 (2) The chief justice of the supreme court may assign any circuit court judge who is not occupied in holding court in his own circuit to some other circuit when a necessity arises therefor.* (3) Whenever two judges of any circuit, exclusive of Cook County, or a majority of the judges of the circuit court of Cook County, or the superior court of Cook County, state in writing to the supreme court that the business of their circuit requires the assistance of additional judges, the supreme court may, by written order, assign a judge of another circuit (or of the circuit or superior court of Cook County) to duty in this circuit. This is subject to the proviso that no judge in any circuit or superior court shall be required to hold court outside of his circuit or Cook County when the business of his own court requires his services.5 (4) Statutes provide that county judges may interchange with other county judges, probate judges, or city judges; that probate judges may hold court for other probate judges, county judges, or city judges; that city judges may interchange with each other and with Jones & Addington, Illinois Statutes Annotated, Vol. 2, Sec. 3067. Hurd's Revised Statutes, Chap. 37, Sec. 215h. |