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SCHEDULE E.
COMMONWEALTH OF MASSACHUSETTS.

AN ACT

TO AMEND JUDICIAL PROCEDURE IN RESPECT TO PRACTICE AT

TRIALS.

SECTION 1. Chapter 173 of the Revised Laws is hereby amended by striking out section 120 and inserting in place thereof the following: Section 120. When exceptions to any ruling or direction of a judge shall be alleged, or any question of law shall be reserved, in the course of a trial by jury, and the circumstances shall be such that, if the ruling or direction at the trial was wrong, the verdict or finding ought to have been entered for a different party or for larger or smaller damages or otherwise than as was done at the trial, the judge may reserve leave, with the assent of the jury, so as to enter the verdict or finding, if upon the question or questions of law so raised the court shall decide that it ought to have been so entered. The leave reserved, as well as the findings of the jury upon any particular questions of fact that may have been submitted to them, shall be entered in the record of the proceedings, and, if upon the question or questions of law it shall be decided, either by the same court, or by the appellate court, that the verdict or finding ought to have been entered in accordance with the leave reserved, it shall be entered accordingly and, when so entered, shall have the same effect as if it had been entered at the trial.

SEC. 2. Nothing herein contained shall be so construed as to limit the powers of the court conferred by chapter 236 of the acts of the year 1909 or by chapter 716 of the acts of the year 1913.

Approved April 19, 1915.

REPORT

OF THE

COMMITTEE TO OPPOSE JUDICIAL RECALL.

To the American Bar Association:

The undersigned, appointed for the year 1914-1915 as your Committee to Oppose the Judicial Recall, respectfully sumbit the following report:

THE CLIMAX OF JUDICIAL RECALL PASSED. Our last report showed that the judicial recall agitation was already discredited through the propaganda of your committee against this doctrine of lawlessness. The American people had, in many localities, been induced to favor, and in some states to adopt, the proposition of judicial recall, either in the form of the recall of judges or of the recall of judicial decisions, or both. This movement was but a temporary and local result of the demagogic appeals to passion and prejudice which had been indulged in by certain agitators, some of them in high places, whose craze for change

led them to become allies of socialism. For a time their hold upon the people was strong because their proposals for radical innovations, striking at the very foundation of our constitutional form of government, were forced upon the favorable consideration of voters through the prestige of the present or past rank of those who were urging them before the people. The contest between the advocates and opponents of judicial recall has been a contest between prejudice and enlightenment. In such a contest the ultimate advantage must be with those who represent conservative intelligence. The opposition to the judicial recall has been carried on by organized and persistent work in bringing home to the mind of the American citizen the true character of the measures which were proposed as a specific remedy for evils admitted to be present in the administration of justice. It was only necessary to discover to the American people the fundamental fallacy of judicial recall in order to insure its repudiation as a possible remedy, and, indeed, its practical elimination from American politics.

From our experiences of former years it seemed to us a year ago that the then coming year would prove that the judicial recall had passed its climax and that the contest represented by your committee had been successful. Nevertheless, with the convening of over 40 state legislatures and with the advocacy of judicial recall then still persistent, we entered upon our year's work with many feelings of apprehension. The members of your committee have stood as outposts, each in his own state, to guard against further encroachments.

We are pleased to report that, during the past year, not only has no advance been made by the opposition, but that, on the contrary, we have been compelled to meet in only a few instances, and in those successfully, any activity from the other side. It cannot be said that the judicial recall is dead. So far, however, as concerns further progress at the present time, it is beaten " to a frazzle"; although that may not yet be openly admitted by some publicists whose bent of mind is so socialistic that judicial recall has with them become a hopeless chronic obsession.

REPORTS FROM THE STATES. The latest reports show that in all of the states where there has been no special activity of judicial recall agitation there is less likelihood than ever that the question will be seriously agitated. In many states where the proposal had seriously been made to establish the judicial recall, but had been defeated, it has grown more and more in disfavor. In states where it has been attempted during the past year to extend its adoption, the measure has been defeated more quickly and by greater majorities than ever before.

In Kansas the constitutional amendment for the recall of public officials, including judges, which was submitted under the proposal of the legislature of 1913 for adoption by the people at the general election in November, 1914, was adopted. With this exception the states which have adopted the judicial recall in

any form are the same as those enumerated in our report for the year 1912-1913. We think that it may be safely said that Kansas will remain the last state to adopt any form of judicial recall.

In Minnesota the constitutional amendment for the recall of public officials including judges, which was proposed by the legislature of 1913, was defeated at the general election in November, 1914, when it lacked about 40,000 votes of the number necessary for its adoption. This was after a special campaign of opposition, conducted under the direction of the Minnesota members of your committee, in which the prize arguments of a law school student and of a high school student, both sons of Minnesota, were widely and effectually used. At the same time the constitutional amendment, which was a part of the measure to increase the number of Supreme Court judges, by which more than a majority of the Supreme Court were made necessary to declare a statute unconstitutional, was defeated; and that for the reason that it thus limited the usual powers of the court. The Minnesota legislature of 1915 rejected a bill proposing a constitutional amendment for the recall of public officials, including judges. It passed a bill proposing a constitutional amendment to increase the number of Supreme Court judges from five to seven, but without any restriction, as adopted by the legislature of 1913, that it should require more than a majority to declare a statute unconstitutional. The attitude of the Minnesota legislature of 1915 toward the judicial recall, as thus shown, is emphasized by the fact that a constitutional amendment for the adoption of the initiative and referendum was passed. The latter bill renewed the proposition which had been defeated at the general election in 1914.

In the Massachusetts legislature of 1915 a bill was introduced by the only Socialist member providing for a constitutional amendment for judicial recall, but it received substantially no support.

In the North Dakota legislature of 1915 a bill proposing judicial recall was killed in the House, whereas two years before the same bill had passed the House by a majority of about two and one-half to one and had been finally killed in that legislature by a margin of only one vote.

In Colorado there is a large and growing sentiment in favor of repealing the constitutional amendments adopted in 1912 providing for recall of judges and recall of judicial decisions. The increasing reaction in that state against judicial recall has not.

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however, as yet reached the point where it is advisable to press the matter of repeal. The delay may be advantageous, for in the meantime Colorado will continue to furnish practical demonstrations in support of the arguments which we have urged against the recall of judicial decisions. One example is significant: The constitution of Colorado empowers the city of Denver to control its own local affairs. Denver, therefore, comes within the judicial recall amendment, permitting the citizens of Denver by a majority vote to recall a Supreme Court decision involving the enforcibility of a city charter provision as against the state constitution. That constitution provides for prohibition throughout the state. The “Wets” are in a majority in the city of Denver; and in the contest which is now on between the “ Wets and “Drys” of Denver, the Supreme Court of the state will probably hold the constitutional state-wide prohibition clause to apply to Denver, whereupon the “Wets,” within the city, will invoke the decision recall and by submitting such decision of the Supreme Court to the electors of the city will doubtless bring about its reversal. Many prohibitionists have heretofore strenuously advocated the judicial decision recall as adopted in 1912. They now see that it may result in at least a partial failure in Colorado of the prohibition movement; and that the idea of local option has been established, not only with reference to the liquor question, but also with reference to the question of the enforcibility of the decisions of the highest court of the state.

In California public opinion seems to be already tending to a repudication of judicial recall as adopted there. “The Pulse of the Pacific” on this question is shown by the following editorial in the current number of the “Sunset” magazine, under the title of “Intimidating Judges":

“There has been more or less trouble over franchise and trackage rights between the municipal and the private street railroad lines in San Francisco. This trouble culminated in July when the private company, after a full hearing, obtained an injunction against the use of certain tracks by the municipal lines. Through this injunction the municipal lines would lose a goodly share of their exposition business, and, in consequence, would have to discharge conductors and motormen.

“Twenty-four hours after the decision the labor union of the municipal railway employees began recall proceedings against the judge who had granted the decision. So loud grew the

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