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of the state. Appeals should lie to the supreme court not as a matter right but by the permission of the court, after an examination of the records.
There should be a set of district courts, having both original and appellant jurisdiction in both civil and criminal matters, properly distributed over the states and officered so as to meet the demands of litigation in their respective districts.
There should be a county system of courts of sufficient dignity in jurisdiction and personnel to command the respect of the people. These courts should be probate courts for the counties and the municipal courts of the county should be chambers of this court. The justice's courts should be a part of the county court. The chief justice of the county should have the power to appoint the justices of the peace for a period of five years.
4. ESTABLISHMENT OF COURTS OF CONCILIATION AND AR
BITRATION. A board of conciliation should be appointed by the chief justice of the county for each county to consist of such a number of conciliators as he shall determine. The chief justice of the county shall be ex officio chairman of this board and shall have power to increase or decrease its membership as he sees fit. He shall have power to remove the conciliators at his pleasure. The conciliators may sit as a board or separately.
Any qualified voter shall be eligible for appointment as conciliator for the county in which he resides. Any member of the bar who acts as conciliator shall be debarred from appearing in a subsequent proceeding in behalf of either party to a controversy submitted to him as a conciliator.
An effort at conciliation shall be compulsory as a prerequisite to a suit in civil action involving less than two hundred dollars, except remedial or provisional actions involving title or possession of real estate. Provided, however, that any district judge may direct the institution of judicial process in any trial court without recourse to conciliation.
Any person having a civil claim not falling within the above exception shall request a conciliator in his county to summon the party complained against to appear before him at a definite time and place. If the conciliator succeeds in reaching an agreement, he shall certify the same to the county judge who shall enter the terms of the agreement, signed by the parties to the conciliation, upon the docket of the court. This agreement shall then have the full effect of a judgment of the said court. If there is a failure to conciliate after an honest effort has been made, the conciliator shall give a certificate to this effect to each of the parties which will permit their controversy to take the course of regular judicial procedure.
A nominal fee of twenty-five cents shall be paid to the conciliator by the initiator of conciliation in controversies involving ten dollars and less, and fifty cents in controversies involving ten dollars and more. When conciliation is accomplished the conciliator shall receive a fee of one dollar in controversies involving ten dollars or less, two dollars as a fee in controversies involving from ten to one hundred dollars, and two per cent of the amount in controversy above one hundred dollars. The conciliator may collect these amounts from one or both of the parties to the agreement.
Before a hearing has been held, a change of venue should be permitted by mutual agreement of the parties concerned. Any conciliator is disqualified to act in any controversy in which he is interested either by business or family relations,
Arbitration in commercial matters should be provided by law, and all commercial contracts should contain an arbitration clause. The parties to a commercial dispute should be permitted to select an arbiter, and if they cannot agree upon an arbiter, the county judge shall appoint the same. When the arbiter makes the award, he shall certify the same to the county court which shall enter it upon record as its judgment.
Conciliation and arbitration are well recognized methods of handling commercial disputes throughout the world. There is a large amount of such controversies in urban centers in the southwestern states that could be settled quickly and cheaply in this way. The adoption of these methods of adjustment would considerably relieve the courts and serve to preserve a better feeling among those who resort to conciliation or arbitration to adjust their difficulties.
5. AN ADMINISTRATIVE SYSTEM FOR THE COURTS OF THE
SOUTHWEST. a. Judicial Council. There should be established by law a judicial council of which the chief justice of the supreme court should be ex officio president. He should have associated with him the senior justices of the various state courts, the president of the state bar association, three members of the state bar association elected by the association for a term of five years, and the president of the state legal aid society. This body shall receive no pay for its services.
It shall be the duty of this council to recommend to the governor two nominees for each vacancy that occurs in the state judiciary from time to time. It should be imperative that the governor appoint one of these nominees to fill such vacancy. All judges from the district judges to the supreme justices should be appointed for life by the governor with the approval of the senate, or legislature, if the body be unicameral.
It shall also be the duty of this council to study the system of courts as it works with a view of being able to suggest methods of improvement as experience reveals its weaknesses. The clerks of the various courts of the state should make annual reports to the council on the workings of their respective courts, and the council should make an annual report on the workings and conditions of the state judiciary to the governor and legislature. One of the chief purposes of the council should be to see that the judiciary is brought into close touch with the progressive jurisprudence of the nation and the world, and that the courts, the bar, legal aid societies, and the people are more closely related to each other.
The council should immediately give its attention to the devising of a more simple procedure to the end of expediting justice. Delay, expense, and the miscarriage of justice should be reduced to a minimum. A close study of the courts by a body of legal experts who are participants in the administration of justice would afford the surest guarantee of an efficient system of state courts. The supreme court, under a liberal practice act, should be permitted to avail itself of the work of the council in adopting new rules of procedure for the entire judiciary.
b. Legal Aid Society. There should be organized a state legal aid society with locals in all of the counties whose business it should be to aid in the administration of justice to the poor. All judges and officers of the law have agreed on the need for this service which no generous and sympathetic community can refuse. This social experiment is one of the most impressive manifestations of a more humane justice that has developed in the last quarter of a century. It is thought best for the present that this organization should be supported by private aid, and that each local organization use its own method in furnishing legal aid where it is needed. Public defenders may be selected in any way the local may determine, and they may be paid for their services as may seem best. The pay should be nominal as such services could be distributed among the members of the local bar.
C. Chief Justice As Administrator. The chief justice, acting with the advice of the supreme court, shall be charged with the administration of justice throughout the state. He should, therefore, be relieved of writing decisions to such a degree as will give him ample time to discharge his administrative duties efficiently. It shall be his duty to divide the supreme court into chambers, civil and criminal; to distribute the work of the court; to convoke the court at his pleasure or at the request of any of the associate justices for discussion and decision when it is necessary ɔr' required
to preserve the unity of the law and procedure of the state. The following instances are suggested as a basis for convoking the court en banc: (1) Controversies involving the constitutionality or validity of a statute; (2) matters involving policies of state; (3) disagreements between divisions of the court on a point of law which was the basis of the decision.
The chief justice shall have power to shift the associate justices to other divisions of the supreme court and to the bench of lower courts for at least one month each year, and to call judges from these courts to the supreme bench at his pleasure. No judge should be required to abandon any case that he has begun to try or review. This exchange of judges would acquaint the judges with each other and the problem of justice throughout the judiciary and the state. Such association would undoubtedly result in a sympathetic understanding among the courts, and in an effective administration of justice. Uniformity and standardization of methods of procedure would soon characterize the administration of justice. He shall have power to convoke the judges of the state once a year for the purpose of conferencing about the problems of the administration of justice in the state.
The supreme court should be given complete control of practice, pleading, procedure, simplification of evidence, terms of the courts, modification of trial by jury by a simple practice act modeled after the English statute of 1875 or the New Jersey Practice Act of 1912. It is axiomatic that the development of the common law system rests with the courts. If constitution, statutes, and an unchangeable technical procedure prevent courts from making imperative changes dictated by their experience, a progressive justice adapted to the changes in society becomes impossible and stagnation results. The scientific character of the common law which follows from the fact that its method is empirical is destroyed by such a system. The theory and the practice are thus antagonistic and contradictory. The states are laboring under the delusion that they have the common law system when in fact a very different system