Meeting of May 17, 1916

At the Club meeting of May 17, 1916, the members were called to order at the conclusion of the recess that followed the business meeting, as follows:

Remarks by President Beverly L. Hodghead

THE PRESIDENT: The immediate purpose of the meeting this evening is to give opportunity for some public discussion of the proposed amendment to the state constitution designed to afford some relief for the congested condition of the calendars of the Supreme Court. The close-observing members of the Club will realize that the meeting is one week late. We invited the members of the Supreme Court, who are much interested in this question, to attend and give us the benefit of their views upon this important subject, and anticipating their defense (which they do not often allow us to do), that the court would be in session in Sacramento on the 10th inst., we postponed the meeting a week, and as a consequence we are glad to be honored this evening with the presence of the Chief Justice and three of the Associate Justices of the Supreme Court. So you see we accomplished a good deal by a departure from the strict rule of pleading, which is often the case.

Unfortunately, Justice Henshaw, who was announced as one of the speakers, notified us late this afternoon that he would not be able to be present. He says that his decision practically rests upon the breaking either of an engagement made by himself or another engagement made by his wife, and the result is obvious.*

Former Chief Justice Sullivan also expected to be here, but he notified us this afternoon that it would be impossible for him to come, and he asked that his views might be presented in writing and be included in the Transactions, and the members will have an opportunity to read them later.

A committee of the Club, in conjunction with a committee of the California Bar Association, very materially aided by the members of the court, have given long and very careful consideration to this proposed amendment, and, no doubt, also, to most of the objections which will be urged against it.

Usually I think it might be said that there are two classes of lawyers, those who actually do the business and those who tell us how it ought to be done. In this instance there has been another departure from the established rule, and that is in selecting the committee to

*A statement by Justice Henshaw appears at Page 88 of this number of the Transactions.

consider this important question of the dispatch of judicial business, we have invaded the ranks of the real practicing attorneys and of the busy judges, who, from actual experience, come in contact with the pressing needs of the situation, and can speak firsthand concerning the necessity of some form of relief. It is not my province to discuss this proposed amendment, but merely to invite discussion. I shall merely state some of the conditions which justified the appointment of a committee to give consideration to this question and which has recommended some form of relief. Unless speedy and adequate relief be administered when the citizen invokes the aid of the law, the functions of government are not fully performed.

I think it may be said that one branch of our government is not behind in its work, and that is the Legislature. (Laughter.) The activity of that branch, however, has contributed materially to the congestion in other branches.

Now, there may be some who entertain the feeling, in which sentiment I do not myself share, that the Legislature could adjourn sine die, and still keep up with the work, but not so with the courts. The volume of judicial business bears a direct ratio to the growth of population. Los Angeles might offer a favorable illustration. Within a period of about ten years the number of Superior Judges in that county has been increased from six, I believe, to eighteen. The population increased from about 100,000 to-well, from 500,000 up-to figures which are almost incalculable.

In the same period the number of Superior Judges throughout the state has increased from eighty-eight to one hundred and fifteen. The number of Appellate and Supreme Judges has remained the same. The population, however, has increased from about one and threefourths million until it now approaches three millions. The increase of litigation is proportionate to the growth of the population.

Those are the conditions that, we think, have justified the appointment of a section for the consideration of this subject.

The result is, three years of congestion of business in the Supreme Court, where there are about eleven or twelve hundred unsubmitted cases, in which at least one party to each appeal must wait for that period impatiently for a hearing.

Now, what is the remedy? Is it to let them wait; or to afford some other form of relief? A complete reorganization of the judicial system throughout the state is a great problem, which would require much time and involve much thought, probably some politics, and certainly a long controversy. The immediate question is the immediate relief.

Any permanent plan which might be ultimately adopted would certainly begin under a serious handicap, because of this accumulated business of probably three years arrears, which would cripple its efficiency.

Now, under those conditions the Legislature, to which I have feelingly referred, at its last special session passed a resolution asking the Judges of the Supreme and Appellate Courts throughout the State, and the Bar Associations, to make some suggestion and offer some remedy for this condition, and this proposed amendment is the result.

Mr. Charles S. Cushing is the chairman of the special committee that has been considering the matter for this Club in connection with the committee of the State Bar Association, and he will speak for the committee, giving their reasons for proposing this amendment.

Report of Committee on Appellate Courts

MR. CHARLES S. CUSHING: The President has already referred to the resolution adopted at the special session of the Legislature asking for suggestions about relief of the condition of the calendars of the appellate courts, and a report of a committee would naturally consider, first, the condition demanding remedy, and secondly, the remedy.

The question of the remedy will be better presented by gentlemen who are more competent than I am to discuss the matter. I will open by referring to the present situation, but before proceeding to discuss that question, I think it would be well to refer briefly to the history of the appellate courts in this state, and thereby lead you up to the condition of today.

The crowded condition of the calendar of the Appellate Courts is a condition which is an incident to an expanding and growing community. If our community were like some of the communities of the old world, and had become moribund, we probably would not have these troubles to consider, but a state the population of which, within sixty-six years, has grown from sixty thousand to in the neighborhood of three million, is bound to have problems, and I will refer briefly to the various stages through which the courts have passed in this connection in the times gone by.

Growth of the Appellate Court

When the constitution of 1849 was adopted it provided for a Supreme Court of three judges. In the year 1862 an amendment was passed, owing doubtless to the delays in litigation at that time, increasing the number of judges from three to five. The court continued to

be composed of five judges until the adoption of the new constitution in 1879. At that time the court, under the old constitution, sat only as a court in banc; it did not sit in departments. When the new constitution was adopted in 1879, one of the very pressing problems which it was sought to remedy was the delay in appeal cases. At that time the provision of the constitution, which continued practically down to date, was adopted providing for a court of seven members, with the provision allowing the court to sit in two departments of three judges each. It was hoped that by that means the congestion of cases would be cleared away and matters expedited. As a matter of fact, each and every one of these moves did for a time help the situation, but while the constitution went into effect in January, 1880, as far as the new court was concerned, in January, 1885, it was found necessary to pass an act of the Legislature creating a court commission of three members to assist the Supreme Court. At first this commission consisted of three members only. Each of the acts that continued the commission in effect and they were re-enacted down to the year 1904-provided that the commission was created for the period of four years. At the expiration of each term it was re-created. I mention this fact because it has a bearing on the amendment under consideration tonight. The first time that the commission was re-created, by the act of January, 1889, it was increased from three commissioners to five, and that membership continued until the year 1904, when an amendment was passed to the constitution which provided for the District Courts of Appeal.

As there are many gentlemen here tonight who are not lawyers, I will state that the present system, as adopted in the year 1904, provides for a Supreme Court, the same as that adopted in 1879, seven judges, who can sit in banc or in department. It also provides for three District Courts of Appeal, each of which consists of three judges, respectively, sitting as follows: First district at San Francisco, Second district at Los Angeles, and the Third district at Sacramento. One of the very beneficial things connected with this system has been its elasticity. It has, I think, been conceded to have worked in the main very well. The elasticity of which I speak consisted of the fact that the Supreme Court has power to assign cases from one district to another, and to assign cases from the Supreme Court itself to these appellate

courts.

The amendment creating these three appellate courts prohibited the further creation or extension of the Supreme Court commission, and, of course, since that time there have been no commissioners.

Sources of Litigation

In 1880, at the time the new constitution of 1879 took effect, the state only had about 840,000 people, and at the census of 1910 it had almost 2,400,000. That is substantially three to one, and it is safe to say that the population is now very considerably increased.

While some of the old fruitful sources of litigation of early California, such as land and mining matters and to some extent water rights, have passed away, and are not now sources of litigation to any great extent, very many other sources have come into existence. The great extension of industrial life, the multiplication of inventions concerning electricity, the increased means of transportation, the numerous street railroads, and last but not least, the automobile, are all fruitful sources of litigation. When a community is expanding and growing, these are all heard from sooner or later in the cases before the

courts.

It would surprise most of us, I think, if we took up the Political Code of California and made an examination as to the great number of public corporations that exist in this state. I mean reclamation and levee corporations, sanitary districts, high school districts, and the like. The complications that arise from our civilization are seemingly becoming more involved. It is not alone, then, the number of modern inventions, the complications of modern industry, but it is the actually more complicated structure of the state government itself that has greatly increased the amount of litigation. If one wants to take a very crude measure of the extent to which the Legislature has assisted in this matter, it is only necessary to examine the volumes of statutes. Take the statutes of the years 1895, 1897 and 1899, and compare them with the statutes of 1905, 1907 and 1909—that is, taking them each time ten years later. You will find that the later ones bulk from two to three times greater than the earlier. The laws are probably two to three times as numerous as at the period ten years before. The enormous amount of new legislation has brought about, and will continue to bring about in the time to come, an enormous amount of litigation.

I have only to mention the fact that during the last ten years there have been passed the public utilities act, the workmen's compensation act, the Federal employers' liability act, the investment companies actor that commonly called the blue sky law-numerous primary election laws, and all the matters pertaining to the referendum and recall. We have only to notice the daily press to see how numerous are the occasions where some of these matters are being considered. Then we have the elections in this state, general elections very frequently, not