to enact or defeat them. Administrative officers, likewise, may be saved many embarrassments by ascertaining, before taking doubtful steps, what is the opinion of the highest authority concerning their validity.

7

188.

Inferior

Inferior courts-lengthily provided for in the state constitutions-consist, amongst others, of arbitration courts, chan- Courts. cery courts, county courts, general trial courts, intermediate courts of appeal,1 justice's courts, juvenile courts,3 land registration, municipal and probate courts."

Constitutional provisions regulating minor courts as well as supreme courts are often extended to minute detail. Even the more important of them are beyond the scope of these pages, but a few words may appropriately be said concerning the county courts and justices of the peace.

In the dozen or more states whose constitutions authorize county courts and in the several other states where their powers are conferred by statute, their jurisdiction varies considerably. Fairly typical is the West Virginia provision conferring jurisdiction in all matters of probate, appointment and qualification of personal representatives, guardians, committees, curators and the settlement of their accounts, and in all matters relating to

Provided by const. Wyo., V, 1; may be established by legislature, Ind., VII, 19; N. D., IV, 12; Mich., XVI, 7; 0., IV, 19; legislature shall pass laws for regulation of; may be established in and for any township:-Wis., VII, 16. The purpose in Wyo. is expressly for the settlement of labor disputes. This probably not always the purpose, elsewhere.

Tinfra, p. 232.

Established by constitution,-Ark., VII, 1; Fla., V. 1; Ky., 139, 140; III., VI, 1; Mo., VI, 1; Neb., VI, 1; N. D., IV. 85; Okla., VII, 1; S. D., V, 1; Tex., V, 1, 15; Legislature permitted to establish in some other states. See, infra, p. 336 and p. 343.

"Generally provided for in most constitutions; e. g., Ind., VII, 1; variously named. Circuit (e. g., Ind., VII, 8; Tenn., VI, 4); Common Pleas (O., IV, 3); District (e. g., Tex., V, 7); Superior (e. g., Ga., VI, sec. III), and Supreme (N. Y., VI, 1).

1Established by constitution,-e. g., La., 84; Mo., VI. 1, 2 (Amend.); Tex., V, 1. Permissive, Ill., VI, 11; Mo., VI (Amend. 1884), 3. Variously named,Appellate (Ill., VI, 2); Appellate Division of Supreme Court (N. Y., VI, 2); Court of Appeals (e. g., O., IV, 6); Supreme Court (N. J., VI, sec. V, 1). 2infra, p. 230.

Established by constitution,-La., 118; permissive, Colo., VI, 1; N. M., VI, 1. "Va., VI, 100.

Established by constitution,-e. g., Va., VI, 87. 98. Permissive, e. g., Ark., VII, 1. Sometimes called City (Conn.), or Corporation Courts (Ark., Va.).

"Established by constitution.--e. g., Ala., VI. 139; Wis., VII, 2. Permissive clause, e. g., Ala., VI, 149; Pa., V, 22; also called Court of Ordinary (Ga., VI, sec. VI, 1); Orphans' Court (Pa., V, 22), and Surrogate Court (N. Y., VI, 15). e. g., Colo., VI, 23; Tex., V, 15. In some states there are purely administrative county courts. In others there are county courts with both administrative and judicial functions.

SVIII, 24.

189. Justices of the Peace.

apprentices. In Arkansas" the county court has exclusive orig. inal jurisdiction in all matters relating to county taxes, roads, bridges, ferries, paupers, bastardy, vagrants, apprenticeship of minors, disbursement of money for county purposes, and in every other case that may be necessary to internal improvement and local concerns of respective counties.

Every constitution has provisions concerning justices of the peace. In Delaware, Maryland and South Carolina1 they are appointed by the governor and senate but usually they are elected, by the voters of the county, district,* township," city," or other local subdivision. Their number is usually left to the legislature or prescribed according to territorial unit. Thus in Georgia there must be one in each militia district. In Louisiana they must be freeholders; qualifications, are, however, rarely specified. Their term of office varies from two1 to seven years. In a few states their compensation must be fixed by law.3 Fees are prohibited in criminal cases in South Carolina1 and in some states fees must not be regulated by local or private laws.5 In a few constitutions permission is given the legislature to abolish the office of justice of the peace or justices' courts."

8

General provisions for the establishment of justice's courts are found in twenty-seven constitutions and permission for their establishment by the legislature is granted in Tennessee. Their jurisdiction is ordinarily both civil and criminal. For the former the Michigan" provision is sufficiently illustrative. It declares that their jurisdiction shall be exclusive to the

VII, 28.

1IV, 32; IV, 42; V, 20.

2Utah, VIII, 8.

se. g., Miss., VI, 171: Tex., V, 18.

e. g., Ky., 99; Tenn., VI, 15.

e. g., Ind., VII, 14.

e. g., Ill., VI, 21; N. Y., VI, 17.

e. g., Vt., II, 47; Wash., IV, 10.

SVI, sec. VII, 1.

$126.

1e. g., Ark., VII, 38.

2e. g., Me., VI, 5.

зe. g., Ala., VI, 168; II., VI, 32; La., 126, 128, 129; N. C., IV, 18; Wash., IV, 10.

4V, 20. See, also, Wash., IV, 10.

e. g., Mo., IV, 53. See, also, Ala., IV, 104.

"N. D., IV, 112 (in general); Ga., VI, sec. VII, 1 (1914); Ill.. IV, 34; La., 96 (in specified instances).

e. g., Ariz., VI, 1; Wyo., V, 1.

SVI, 1.

"VII, 16

amount of $100 and concurrent to $300, which may be increased to $500, with such exceptions as may be provided by law. For the latter may be instanced the Mississippi provision' that jurisdiction shall be concurrent with the general trial courts where punishment does not extend beyond a fine and imprisonment in the county jail. The legislature is authorized, however, to confer exclusive jurisdiction in case of petty misdemeanMore than a third of the states forbid regulation of justices' jurisdiction by local or private laws.

ors.

190.

Specific regulations for procedure are occasionally found Procedural governing individual courts. There are, here and there, a few Regulations. general procedural rules, for instance3 that no criminal case is to be reversed for technical error in proceedings, when upon the whole case it appears that substantial justice has been done, and that no judgment can be set aside or new trial granted for any error, as to any matter of procedure, unless after examination of the entire cause, including evidence, the court is of the opinion that error complained of has resulted in miscarriage of justice. There are several provisions making mandatory the adoption or regulation of systems of procedure by the legislature or, as has been seen, by the highest court. About half of the states forbid the regulation of procedure by local or private statute, and several others expressly require uniformity."

7

Pleading and

Occasionally a rule of pleading and practice may be found. 191 For example in two states every action prosecuted by the state Practice. as a party against a person charged with a public offence must be termed a criminal action. Criminal pleading is extensively regulated by statute.1 A large majority of the states have

1VI, 171.

2e. g., Ind., IV, 22.

Ariz., VI, 22. For other regulations of criminal cases, see N. M., II, 15; Ore.,
VII, 5; Tex., V, 17.

Cal., VI, 41⁄2 (1914). Similarly, Ore., VII, 3; see, also, Miss., VI, 147.
Ida., V, 1, and N. C., IV, 1, abolish feigned issues.

Ida., V, 13; Ia., V, 14; Minn., VI, 14; N. C., IV, 12.

'Md., IV, 18; Mich., VII, 5; Tex., V, 25.

se. g., Ind., IV, 22; Tex., III, 56.

See Colo., VI, 28; Ga., VI, sec. IX, 1; Ida., V, 26; Ill., VI, 29; Mont., VIII, 26; Neb., VI, 19; S. D., V, 34. For other miscellaneous provisions, see Del., IV, 26; La., 165; Mich., XVI, 6; N. M., IV, 34. See, also, ch. 5 for N. Y., proposal,

1915.

1Ida., V, 1; N. C., IV, 1. In W. Va., III, 11, political and religious test oaths must not be made a prerequisite or qualification for the right to plead. Cal. and Ariz. forbid reversal for technical errors. Miscellaneous provisions: La., 129; Neb., VI, 9; Ore., VII, 5.

192.

Abolition of
Distinction
Between Law
and Equity.

adopted statutory codes of civil practice which in general abolish the distinction between common law and equity pleading and attempt to make pleading simpler and more direct than under rules that have developed through judicial decisions.2

Several constitutions contain provisions requiring the abolition of the distinction between law and equity. That of South Carolina, for instance, ordains that

3

justice shall be administered in a uniform mode of pleading without distinction between law and equity."

6

Michigan orders the legislature to abolish the distinction between law and equity so far as practicable and Mississippi, which has separate courts of chancery, forbids reversal in civil cases on the ground of lack of jurisdiction as between the chancery and common law courts. Four other states have chancery courts generally provided for in their constitutions, and three states specifically authorize their legislatures to establish them. In a few states, also, separate chancery courts exist under general provisions authorizing the legislature to establish courts. More than a third of the constitutions expressly provide that their general trial courts shall have equity jurisdiction, sometimes with additional qualifications.1

2See Hepburn, C. M., The Historical Development of Code Pleading in America and England. The original code state was N. Y., whose code (1848) was considerably changed the year after its enactment (N. Y. Laws, 1849, ch. 438), and has since been frequently amended. Later codes of practice have been modeled upon it. Its complexity, however, has caused much dissatisfaction and the recent constitutional convention made an effort to have substituted for it "a short and simple civil practice act."

3VI, 3.

"Provisions with similar purport are found in several other states.-Ida. (V, 1) and N. C. (IV, 1).-Distinctions between actions at law and suits in equity, and forms of all such actions and suits prohibited; to be but one form of action for enforcement or protection of private rights and redress of private wrongs, called a civil action.

Ind. (VII, 20) and O. (XIV, 1, 2, 3).—Commission provided for to, as far as practical, abolish distinct forms of action at law and provide uniform mode of proceeding without any distinction between law and equity.

Mont. (VIII, 28); Nev. (VI, 14) and Utah (VIII, 19),-To be but one form of civil action, and law and equity to be administered in same action.

"VII, 5.

VI, 147, 152. If remanded. the case may be sent to law or chancery court, irrespective of which originally tried it.

Ala., VI, 139, 145; Del., IV, 1; Miss.. VI, 152; N. J., VI, sec. I, 1.
Ark., VII, 1; Tenn., VI, 1; Vt., ch. 2, sec. 29.

"Cal., VI, 5; Colo., VI, 11; Ida.. V, 20; III., VI, 12: Ia., V, 6; Mont., VIII, 11; Neb., VI, 9; Nev., VI, 6; N. Y., VI, 1; S. D., V, 14; Wash., IV, 6; W. Va., VIII, 12; Wyo., V, 10.

1See Ala., VI, 148; Ark., VII, 15; Ariz., VI, 6; Fla., V, 11, 12: Ga., VI, sec. IV, 1, 2; Minn., VI, 5; N. J., IV, sec. VII, 10; Pa., V, 20, confers certain chancery powers on the court of common pleas.

193.

Judicial

Toward these efforts to make the judicial process more simple and direct a large proportion of current thought concerning Inefficiency. judicial reform is directed. Much complaint has, apparently not without cause, been directed against the expense and delay2 attendant upon the administration of justice and the alleged inefficiency of the courts. The judicial systems of the states, taken as a whole, says a well-known writer on the subject,3 fail to keep pace with current progress in efficiency exhibited -say-by a well-managed private law office;

somehow the organization, procedure, and administrative routine of the court are still of an era which the community outside has necessarily superseded, in order to hold its own in the commercial competition of the times.

Not only are the energies of judges of learning and ability frittered away by irritating and vexatiously long-drawn-out procedural applications which involve how, and not what, but litigants often do not know in which of several courts to bring a particular action and may find after months or even years of delay that this technical mistake has produced a costly failure to obtain justice. A reduction in the number of courts and clear statements of their jurisdiction would seem desirable. In the midst of unnecessary technical hindrances exact justice is likely to be lost sight of. For very weariness, if for no other reason, bench and bar fall back upon established rules and precedents instead of searching diligently for new rules more suited to the case in question.

The Doctrine

Review.

The most interesting and significant of current discussions 194. of the judiciary relate to the doctrine of judicial review. Ought of Judicial the courts to assume supremacy over the legislative department of the government to the extent of declaring a legislative act unconstitutional? They have universally held that they not only ought to do so but cannot escape from such a course.

"The following is only too illustrative of a well-founded popular idea of what litigation entails,

PARKE-You know, I wish I had some real occupation that I knew was going to take up a large part of my time for the rest of my life.

LANE Why don't you start a lawsuit in New York?-Life.

Justice Wm. L. Ransom of the City Court, N. Y. City.

Academy of Political Science, V, 217.

Proceedings of

See, Jessup, H. W.. The Organization and Procedure of the Court. Proceedings of Academy of Political Science, V, 193.