Proposals of a Less Fundamental Character. It is now proposed to discuss briefly certain proposals of changes which will be suggested to the convention involving technical modifications of the present system, provided this system is substantially retained in the new constitution. Probate Matters. (a) Testamentary trusts. The question of testamentary trusts will undoubtedly come before the convention. Under the present constitution the supreme court has held that the administration of testamentary trusts is a chancery matter and not a probate matter, and that the general assembly can not extend the jurisdiction of probate courts to include the administration of such trusts. There is a strong feeling among a large number of members of the bar that probate courts should be empowered to administer testamentary trusts, or, at least, that the jurisdiction of probate courts should be so defined as to give the general assembly power to vest such jurisdiction in them. Should a single trial court system be established, the problem of testamentary trusts would at once be solved. In New York the surrogate's court, which corresponds to our probate court, has statutory jurisdiction to direct and control the conduct and settle the accounts of testamentary trustees, to remove testamentary trustees, and to appoint a successor in place of a testamentary trustee. It also has power to enforce the payment of debts and legacies; the distribution of the estates of decedents, and the payment or delivery by executors, administrators, and testamentary trustees, of money or other property in their possession belonging to the estate or fund.73 In Massachusetts the probate court is given jurisdiction of all cases and matters relative to the administration of trusts which are created by will.74 (b) Construction of wills. Suggestion will be made that authority to construe wills should also be vested in the probate court. Under the existing system the construction of a will is a matter of chancery jurisdiction. Some lawyers feel that if the existing system of probate courts is to be retained, these courts should be clothed with authority to construe wills, at least concurrently with courts of chancery. In New York the surrogate's court has jurisdiction to determine the validity, construction, or effect of any distribution of property contained in any will, whenever a special proceeding is brought for that purpose, or whenever it is necessary to make such determination as to any will in a proceeding pending before the court, or whenever any party to a proceeding for the probate of any will who is interested. thereunder demands such determination in such proceeding.75 (c) Trials de novo. Under the present statute appeals from the probate court and from the county court in probate matters go, in most cases, to the circuit court, where a trial de novo is ha 1. In the 13 Laws of New York, 1914, Chap. 443. Revised Laws of Massachusetts, 1902, Ch. 162, Sec. 5, p. 1423. down state circuits such trials de novo are comparatively few. In Cook County, however, there were a sufficient number of appeals from the probate court in 1918 to occupy a large part of the judicial time of a circuit court judge during that year. In view of the specialization of the probate judge of Cook County in probate matters many lawyers regard a trial de novo in the circuit court as superfluous. In the down state counties, particularly in the smaller ones where the county judge receives such a small compensation that the more experienced members of the bar are not attracted to the office, a different situation is found. In these counties there is much to be said for the trial de novo in the circuit court. The trial de novo in probate matters may, of course, be abolished absolutely by statute. If its total abolition is desired no constitutional change is necessary. If, however, it is desired to abolish the trial de novo in Cook County and permit it in other counties, the uniformity provision in the present constitution will cause trouble. Should a unified trial court be established, the difficulty of trials de novo will not arise. City and county courts. If the present system of city courts is retained, it will be suggested that the jurisdiction of such courts be made co-extensive with the county. If the county court is to be retained, it will be suggested that it be given equitable jurisdiction. Qualifications of judicial officers. It has been suggested that a new constitution require that masters in chancery, county judges, probate judges, and state's attorneys be members of the bar. In this connection it will be noted that the constitution contains no requirement as to the professional qualifications of any judicial officers. Circuit and supreme court judges need not have been admitted to the bar, and the supreme court has held that the general assembly may not impose qualifications for office in addition to those now prescribed in the constitution. Masters-court commissioners. It will be suggested that provision be made for some such officer as a master or court commissioner to perform on the common law side duties somewhat analogous to those of the master in chancery in the equity courts. Attention is called, particularly in Chicago, to the vast amount of time spent by judges in hearing motions, large numbers of which are uncontested. It has been urged that if some such officer be provided to relieve the judges of this mass of routine work, a great saving in judicial time could be effected. Some such system is provided in a few states. In Arizona the judges of the trial court are empowered to appoint "such court commissioners in their respective counties as may be deemed necessary, who shall have such powers and perform such duties and receive such compensation as may be provided by law"." Statutes have specified the powers of these commissioners. Information from Arizona, however, tends to indicate that matters are presented to them so infre 76 People v McCormick, 261 Ill. 413 (1914). quently that their functions amount to little. It appears that they do not act at all when the judge is within the jurisdiction. Similarly in California it is provided that the legislature "may also provide for the appointment, by the several superior courts, of one or more commissioners in their respective counties, or cities and counties, with authority to perform chamber business of the judges of the superior courts, to take depositions, and perform such other business connected with the administration of justice as may be prescribed by law.78 The system is not used to any extent in California. It is the policy to provide additional judges from time to time as the work requires, instead of using court commissioners. In England masters are employed to hear motions and interlocutory applications. They save the judges an enormous amount of time.79 In Illinois the establishment of a system of court commissioners is not dependent upon constitutional provisions. Much could be accomplished in this direction by statute. Public defender. It will be suggested that the new constitution provide for an official to be known as the public defender, whose duties shall consist of defending criminals who have insufficient funds to procure competent counsel to defend them.80 State's attorneys. The suggestion has been made that the machinery for the administration of justice in the state be consolidated. in a single department, or under a single officer. To effect such a concentration it has been suggested that the state's attorney either be placed directly under the governor, who is responsible for the administration of justice, or that he be subjected to a more effective control of the attorney general than under the present system, and that the attorney general be made appointive by the governor. It should be noted that under the present constitution state's attorneys may be removed from office only "on prosecution and final conviction for misdemeanor in office." Uniformity of jurisdiction. The provision in the constitution of 1870 that all laws relating to courts shall be general and of uniform operation and that the organization, jurisdiction, powers, proceedings. and practice of all courts of the same class or grade shall be uniform, will cause difficulty if it is desired to create a unified court for Cook County and retain the present system of judicial organization downstate. It will also cause trouble in the future if consolidated jurisdiction is desired in other cities which may present problems similar to those now existing in Chicago and Cook County. This clause will also lead to difficulty should it be desired to abolish trials de novo and appeals from the probate court in Cook County and retain them in other counties. A similar situation will arise should it be desired to abolish justices of the peace in urban communities and retain them in the rural districts. 78 California constitution. Art. VI. Sec. 14. 19 See Leaming: A Philadelphia Lawyer in the London Courts. Chap. X. So See Justice and The Poor. by Reginald Heber Smith. Carnegie Foundation for the Advancement of Teaching, Bull. No. 13, Chap. 15 (1919). 81 Coroners. The substitution of medical examiners for coroners will be suggested. At the present time the chief function of the coroner is to hold inquests on the bodies of persons who are supposed to have come to their death by violence or other undue means. The inquest is held in view of the body by a jury of six summoned by the coroner. The coroner's inquest has been held not to be a judicial proceeding. The Supreme Court of Illinois at first held it admissible in a civil case as evidence to show the cause of a person's death in this state but not as conclusive evidence. This view was later departed from by the holding of the supreme court that the findings of a coroner's jury cannot be admitted as evidence in workmen's compensation cases to prove the cause of death. At the last session of the general assembly it was enacted that the coroner's verdict should not be admissible as evidence to prove or establish any of the facts in controversy in any civil suit or proceeding to recover damages for injuries caused by the negligence of any person, firm or corporation resulting in the death of any person or for the collection of a policy of insurance83 82 Massachusetts and Maine both provide for the appointment by the governor of medical examiners in each county. In Maine they must be "able and discreet men, learned in the science of medicine and anatomy, and bona fide residents of the county for which they are appointed".s 84 Massachusetts has similar requirements.85 The duties of the medical examiners are similar to those of coroners in Illinois. Reports from Massachussets speak very highly of the results obtained under the system. In Louisiana coroners are required by the constitution to have a medical or surgical education.86 In New York City coroners are appointed by the governor.87 In this connection it has been suggested that reference to coroners be omitted from the constitution in order that the general assembly may subsequently deal with the duties now performed by them in such manner as it may see fit. Justices of the peace. Several suggestions have been made with respect to the justice of the peace system. Many lawyers in rural communities believe it works as well as any system which could be devised to take its place. Others are strong advocates of its abolition. Many feel that the jurisdiction of the justice of the peace is too high and should be reduced. This is, however, a statutory and not a constitutional matter. A few lawyers have suggested putting justices of the peace on a salary basis and electing only enough to handle the work of the community. Such a plan would probably work satisfactorily in urban communities, but would present greater difficulties in rural districts. It has also been suggested that the county courts take over the jurisdiction of the justices of the peace and police magis 81 United States Life Insurance Co. v Vocke, 129 Ill. 557 (1889). 82 Peoria Cordage Co. v Industrial Board, 284 Ill. 90 (1918); Spiegel v Industrial Commission, 288 111. 422 (1919). 83 Laws of Illinois. 1919. p. 294. 84 Revised Statutes of Maine (1916). Ch. 141. Sec. 1. p. 1585. 85 Revised Laws of Massachusetts (1902), Ch. 24, Sec. 1, p. 357. 86 Constitution of Louisiana, Art. 121. 67 N. Y. Laws, 1915, Ch. 284. trates. Such a system would present difficulties, since it is impracticable to take all justice of the peace business from all parts of the county to the county seat. Another suggestion is that the circuit court appoint two or more masters or commissioners to be stationed in different parts of the county or to travel through it when necessary and dispose of this kind of business, such commissioners to be under the general supervision, of the circuit court. Proposals for a unified court for Cook County contemplate the absorption by that court of the jurisdiction of the justices of the peace and police magistrates in the county outside of the city of Chicago. If the present justice of the peace system is retained the suggestion has been made that in very petty matters the decision of the justice should be final without appeal to the county, circuit, or city court. In Washington justices of the peace in incorporated cities or towns having more than 5,000 inhabitants have been placed on a salary basis. Reports from that state as to the operation of this system indicate that it works satisfactorily. A prominent Seattle lawyer writes: "It leaves the justice to be in fact a judge, without having to think about the fees he may realize out of the case, and I think it is generally preferred in this state to the fee system of charges." In California justices of the peace have been placed on a salary basis in the larger communities. Reports from that state indicate that it works satisfactorily and is a great improvement over the fee system. Suggestions covered in other chapters of this bulletin. Many proposals of changes in the judicial organization have been discussed in other parts of this bulletin. In the section on the jury and grand jury, the various proposals of changes in the jury and grand jury system have been discussed. In the chapter on the election and tenure of judges proposals with respect to methods of electing judges, methods of removal, methods of choosing chief justices of the various courts, and proposals for the temporary appointment of judges to fill vacancies, or to assist courts whose calendars are congested, have been discussed. The chapter upon the election and tenure of judges has also considered proposals for reapportionment of the supreme court election districts of the state of Illinois and the question of changing the boundaries of these districts. In the chapter on power to declare laws unconstitutional the proposals for advisory opinions and for the requirement of an extraordinary majority to declare laws unconstitutional have been treated. Claims against the state are not now handled by the courts in Illinois, but the problem involved in such claims is so closely related to the judicial function that it has. been discussed in a separate chapter of this bulletin. In Bulletin No. 14 will be found a discussion of the power of courts in injunction cases. |