W. B. MUNRO, Principles and Methods of Municipal Administration (The Macmillan Company, 1916) and

HERMAN G. JAMES, Municipal Functions (D. Appleton & Co., 1917), National Municipal League Series, deal authoritatively with important phases of municipal administration.

G. A. WEBER, Organized Efforts for the Improvement of Methods of Administration (D. Appleton & Co., 1919).

Useful summary of official agencies to improve administration. C. G. HAINES, "The Movement for the Reorganization of State Administration," University of Texas Bulletin No. 1848, June, 1920. W. F. WILLOUGHBY, The Government of Modern States (The Century Company, 1919), Chap. XIV, The Executive Branch, and Chap. XVI, the Administrative Branch.

The Executive Department, Illinois Constitutional Convention Bulletin,

No. 9.

Report of Efficiency and Economy Committee, Illinois, 1917.

A comprehensive report on the former administrative organization of the state of Illinois, with an analysis of defects and proposals for reorganization.

Report of Reconstruction Commission, to Gov. Alfred E. Smith, on retrenchment and reorganization in the state government, New York, October, 1919.

State Administration, Bulletin of Bureau of Municipal Research, No. 63, New York, July, 1915.

Contains a discussion by specialists in administration of the proposed amendments for the reorganization of the Executive Branch before the New York Constitutional Convention, 1915.

CHAPTER VI

PROBLEMS IN THE ORGANIZATION OF COURTS AND IN THE ADMINISTRATION OF JUSTICE

"I do know that the United States, in its judicial procedure, is many decades behind every civilized government in the world; and I say that it is an immediate and an imperative call upon us to rectify that, because the speediness of justice, the inexpensiveness of justice, the ready access to justice, is the greatest part of justice itself."

-WOODROW WILSON.

"Justice in the minor courts-the only courts that millions of our people know-administered without favoritism by men conspicuous for wisdom and probity, is the best assurance of respect for our institutions."-CHARLES E. HUGHES.

GENERAL CHARACTERISTICS OF JUDICIAL ORGANIZATION IN THE UNITED STATES

ACCORDING to President Taft, "the greatest question before the American people is the improvement of the administration of justice, civil and criminal, both in the matter of its prompt dispatch and the cheapening of its use." The problem of securing an efficient judicial system has been especially difficult in America, where the theory has prevailed that all departments of government must be based on popular approval and sanction. In many respects the judiciary is the most important branch of the American government. Because of the extraordinary authority accorded to the courts to review and to pass upon the validity of legislation, and because of the general phrases in constitutions by which legislative acts are measured on the basis of reasonableness and justice, the judiciary of the American government exercises a greater supervision and control over other departments than does the judiciary in any cther government. Moreover, the failure to provide

administrative supervision over subordinate officers has left a large responsibility to the courts, whose duty it becomes to scan the authority of these officers, to decide whether their acts are within the law, and, at times, to determine whether public authority has been exercised arbitrarily. In each of these rôles the American judiciary has performed distinct services in addition to its normal functions, which are the settling of controversies that arise and the protecting of the citizen in his rights.

Although in England and the United States the courts exercise a determining influence in the process of lawmaking, it is probable that in no other instance have legislatures turned out such an extensive and significant body of statute law as is now represented by the product of American legislatures.

Our "experiment stations," as Viscount Bryce termed them, have been turning out thousands of volumes of statute law which constitute a veritable library, including session laws, general statutes, and codes with numerous compilations and annotations for each state and for the Federal government. This voluminous product of lawmakers has called for a mass of interpretative judicial decisions, which, for any one state, has become so extensive as to lead to bewildering confusion, to which lawyers often testify, but for which no satisfactory remedy seems available. The Library of Congress reported that in a fiveyear period 610 volumes of state reports were issued, containing 64,318 decisions, and for the same period there appeared twenty volumes of Federal reports, containing 1,061 decisions. The number of statutes added to American law during this same period is estimated at 62,014. "With 13,000 decisions of courts of last resort being made each year, and 12,000 laws annually enacted by the legislatures, no man could determine his rights without employing attorneys."

1

R. H. Smith, "Justice and the Poor," Bulletin of the Carnegie Foundation for the Advancement of Teaching, no. xiii (1919), p. 7.

Common law, statutes, and judicial decisions combine to make law in the United States insurmountably involved and complex.

Judicial organization in the United States was originally established in accordance with the English model, which at that time involved a multiplicity of courts. Under the pioneer conditions which then prevailed in the United States the main object was to keep peace, and to accomplish this end it soon became necessary to develop rules.1 At the beginning of the nineteenth century,

American law was undeveloped and uncertain. Administration of justice by lay judges, by executive officers, and by legislatures was crude, unequal, and often partisan, if not corrupt. The prime requirement was rule and system, whereby to guarantee uniformity, equality, and certainty.2

Thus, the chief problem of the formative period of American law was to discover and to lay down rules which would meet the requirements of American life and which would effectively restrict the powers of the magistrate by leaving as little to his personal judgment and discretion as possible. The chief design was to leave as much freedom as possible to the initiative of the individual and to confine governmental action to the minimum required to keep the peace. This purpose determined the course of our legal development and the organization of courts until the last quarter of the nineteenth century.3

The general type of judicial organization in American states provides for four courts or sets of courts. First, there is a supreme tribunal of appellate jurisdiction, composed of a fixed number of judges who sit in this tribunal and who review the work of the superior courts of first instance.. The judges of the supreme tribunal are not permitted to serve in any other court. Sometimes an intermediate court is established between the superior court and the

1 See Roscoe Pound, "Organization of Courts," American Judicature Society Bulletin, no. vi. 31 West Lake Street, Chicago. 3 Ibid., pp. 12-13.

'Ibid., p. 13.

supreme court. Second, there is a group of superior courts, established in fixed districts with a judge or number of judges assigned to each. As a rule these judges, too, cannot sit elsewhere. Third, there are in each county, courts with probate and general jurisdiction in civil and criminal matters. Fourth, there is a set of magistrate courts with one for each locality. These courts are frequently presided over by laymen and are usually supported by fees.

Though the plan of judicial organization as above described served well the needs of the country during the first decades of the establishment of state governments, certain defects have become apparent as the courts have had to deal with the more complex and intricate conditions of modern society.

DEFECTS OF AMERICAN JUDICIAL ORGANIZATION

Regulation of Procedure by Legislative Acts.-A fundamental difficulty in court organization in the United States is that constitutions and legislative acts regulate courts and judicial procedure in too great detail. "The legislative attempt to fix the machinery of justice in all its details made of procedure a maze which precluded litigation unless the suitor could engage counsel to guide his case through all the technicalities." In England and in European countries it is customary for the legislature to organize courts and to lay down certain general principles, leaving to the courts the completion of the details of organization and administration, and the determination of rules and regulations in matters of procedure. On the contrary, legislatures in the United States attempt to regulate in detail not only the organization of courts, but also matters of procedure. The essential element of flexibility and the adjustment to meet special conditions which other countries provide are

R. H. Smith, "Justice and the Poor," Bulletin of the Carnegie Founda tion for the Advancement of Teaching, no. xiii (1919), p. 7.