THE
BREVIER LEGISLATIVE REPORTS.
FOURTEENTH VOLUME.
INDIANA LEGISLATURE.
Re-organization of the Judiciary.---Debate in Continuation.
IN SENATE.
WEDNESDAY, February 5, 1873.[CONTINUED FROM TOP OF PAGE 125.]
The LIEUTENANT GOVERNOR announced the special order for half past ten o'clock - Senate Bill No. 238 to divide the State into circuits for judicial purposes.
Mr. Brown moved to postpone the special order until to morrow at 10 A. M.
It was rejected.
The Senate then went into a Committee of the Whole, for the consideration of the bill, with Mr. Dwiggins in the chair.
The bill was read by sections.
Mr. GLESSNER offered a resolution that the bill be referred back to the Select Joint Committee, with instructions to increase the time of holding courts in the several districts each year from 36 to 42 weeks, and that all amendments submitted to the bill in the Committee of the Whole, be referred with the bill to the same committee.
Mr. SCOTT moved to amend the resolutions so as to refer the bill to the Committee on Judiciary to perfect it.
The CHAIR decided the resolution out of order.
Mr. SCOTT then moved that the committee rise and recommend to the Senate that the bill be referred to the Committee on Judiciary to perfect it.
Mr. GLESSNER moved to amend so as to refer it to the Select Joint Committee on the subject.
Mr. SLEETH made the point of order that the select Committee having discharged the duty assigned to it is now dissolved.
The CHAIRMAN held the point well taken.
Mr. BROWN moved to amend Mr. Scott's motion so as to refer the matter to a Select Committee of one from each Congressional District, and Mr. Scott accepted the amendment.
Mr. RHODES offered a substitute to refer the matter to a Special Committee of thirteen with instructions to report a bill containing the following points: 1. Redistricting the State for judicial purposes, equalizing, as nearly as possible, the labor in the Circuit and Common Pleas Courts, making such changes in the number and territorial jurisdiction of the same as may be necessary to accomplish that object. 2. In counties where there are no Criminal Courts, transfering all the criminal business to the Common Pleas Courts.
Mr. DAGGY said he wanted some expression from the Senate on the subject of abolishing the Courts of Common Pleas. For himself, he did not believe they were prepared to do that yet, but he would like to know how Senators stood. He therefore moved to amend the substitute by striking out of the instructions all that relates to Common Pleas Courts,
Mr. GOODING. The only material difference between the Circuit and Common Pleas Courts is that the latter is charged page: 420[View Page 420] with probate business. Why have two courts covering the same territory with concurrent jurisdiction? Why won't one court answer the purpose ? The bill under consideration simply requires the Circuit Courts to perform the duties heretofore discharged by the Common Pleas Courts, no more and no less. A surrogate system is not necessary. Some gentlemen say the Circuit judges won't have time; - I think they will have plenty time, and if we confer Common Pleas jurisdiction upon Circuit Courts, why can't the Circuit Court do all? By passing this bill we would save thousands of dollars to the State of Indiana. If we would provide a Surrogate Court we would increase the expenses of the Judicial system. The judges of the Circuit Courts, with the small circuits provided for, would be able to discharge all the duties required of them, and there would be no need of Surrogate Courts. The proceedings would thus be simplified; there would be but one set of records, and the system would be less expensive. When gentlemen desire to examine the records for a judgment they would have to examine but one set of books. If we can make our courts plainer and more simple than the courts of other States, and at the same time ample to discharge their duties, we ought to do it. Under this bill we have a plain system that any man can understand, and the judge will have time to discharge the duties of his office. I think we ought to abolish the Common Pleas.
Mr. O'BRIEN. Like the Senator from Putnam (Mr. Daggy) I do not know whether I am prepared to vote for abolishing the Common Pleas or not. I will say I am not prepared to vote for it till I see a better substitute. There certainly can be but two objects in changing the judicial system - the first would be to make it more efficient, and the second to make it more economical. This bill as at present arranged I think does neither - it is neither more efficient nor more economical, but on the contrary it is less efficient and more expensive. I cannot vote for this bill unless it is materially modified. I don't care what you call the court so it is efficient and not too expensive. In the Circuit where I live, composed of three counties, we have now fifty-five weeks in the year, This bill proposes to give thirty-three in lieu of fifty-five; and I say to this Senate there is no Judge living can do the business in that time and do it well. A Senator says we must increase the salaries of our Circuit Judges. I grant the salary is too small and so it is with the Common Pleas Judges. But as a measure of economy this bill proposes to transfer the Common Pleas business to a Judge with a salary of $3000 or $3500 a year, while we are now getting it done for $1500. This bill proposes four terms during the year and with that a grand jury. At the last Spring term in our county the cost of the Grand Jury was $1200. Under this bill they would draw $4800 for the Circuit Court. That, with the increase of the salaries of judges, will more than double the expense of litigation. What argument is there in favor of this new system? It is an easy matter to abolish judges, but what will you substitute for it? Is there any economy in increasing the terms of the Circuit Courts the most expensive court we have? The great difficulty in all our courts is that we have criminal business mixed up with civil, and that ruins our civil litigation. If we could get that separate it would relieve us greatly. If we can adopt some system that will separate our business we can then systemize it, otherwise I see nothing that will. I favor the substitute as being a measure in the right direction.
Mr. BOONE. I am not in favor of abolishing the Common Pleas Court yet. I know gentlemen, young ones in particular, can without much difficulty find fault with the provisions that are made for carrying forward the business of the country. It is very easy to find fault. It happens that I have had something to do with the courts ever since the organization of the Common Pleas Courts in Indiana, and as far as my knowledge extends, people who have had business transacted in it make but little complaint. The argument that the records are cumberous does not meet the question. It is not true that it takes more records when the business is divided than if the same business were transacted by one court. The same amount of record would have to be made, though not in two separate volumes. It is contended that the Circuit Judges have an equal amount of ability with Common Pleas Judges, but it is a known fact to gentlemen, not lawyers even, that a division of labor makes success. So it is with regard to business in the courts. The difficulty now which calls out anathemas against the Common Pleas is the conglomeration of civil, criminal and probate business in the same court. The probate business does not go to the Circuit Court except in cases where the Common Pleas Judge is interested. Even with this division which is partial only, it is contended that the courts are inefficient. Then inefficiency is not on account of the fact that there are two Judges, but because the business is not divided as it should be. The entire commercial world is divided that it may be efficient It is no less true of the bnsinew entrusted to Judges. You put all this diverse business in the hands of one judge, and it requires a versatility of talent and ability page: 421[View Page 421] not necessary now because the business is divided. I am not ready to dispense with the Common Pleas Courts, certainly till we know of something that is better. There is no necessity of giving up that which, we know and fly to evils we know not of. It is contended that by this bill you will decrease the expenses of court business. That is not true; and if this system is adopted, next session will not pass over our heads before there will be loud cries from all parts of the State for County Judges or Surrogate Courts, or something that will result in the end more costly than the present system.
Gentlemen who live in localities that have Criminal Courts which separates that from the civil business, say this Common Pleas system is a nuisance. Perhaps that comes from the fast that they have their criminal business taken out of the way, and they have their civil business divided. Criminals find this city and Lafayette and other places where there are Criminal Courts too hot for their residence, and the effect is they run to the adjacent county like rats from a sinking ship, to commit their depredations where the courts meet but once every three or four months, and they have an opportunity to break jails, and suborn witnesses or run them out of the country. In localities where they are not situated as we are - where they are remote from cities, perhaps it would be effectual, but with us it is not so. By this bill it is proposed to give us sixteen weeks in our county. We now have thirteen weeks and two terms, and are behind, and if we should be so unfortunate as to have a Clem trial or two I don't know as our civil cases would ever see the light. I see the Judge in the Senate chamber now; and it seems impossible, after holding two months of an adjourned term to keep up with the business on account of the conglomeration of this civil and criminal billing. I am not ready to abolish the Common Pleas system until I see a better and a cheaper system. I would vote for a system to divide the business making one court for civil business exclusively and another for civil business. I don't propose to enter into this discussion more fully as to this great importance of the division of the civil and criminal practice. In the early history of this State when the amount of criminal business was but small and the amount of civil business smaller, it made but little difference whether you had the two together in one court or separate; but now the counties and districts are thickly populated, and to protect the smaller towns against the depredations of these scoundrels, it is necessary that they should have separate criminal courts.
Mr. BROWN said he thought the best remedy for the evil of which the gentleman from Boone [Mr. Boone] complained was to abolish the Common Pleas Court, and transfer the criminal business to those courts which will sit three or four times a year. This will insure speedy justice, and relieve the counties of the expense of boarding criminals for six or eight months, or a year, before they could be tried. The Common Pleas Courts were originally established as probate courts. But the aspiring judges thought their jurisdiction ought to be enlarged, and from time to time appealed to legislation until now they are nisi prius courts of almost equal jurisdiction with the circuit courts. Thus we have the anomaly of two nisi prius courts traveling around among the people transacting the same business, with no appeal from one to the other. And it has come to pass that the probate business, for the careful transaction of which Common Pleas courts were originally created, has fallen almost exclusively into the hands of the lawyers and the clerks of the courts ; the judges being too much occupied with cases in litigation to give their personal attention to the settlement of estates. In his district it rarely happened that an estate of $1,000 was settled in less than five years. So the Common Pleas Courts have become inefficient for the transaction of the business for which they were primarily created and unnecessary for the transaction of other business. If the circuits are made smaller and the number of terms increased, the circuit courts would be competent to attend to all business except probate, and he hoped that courts would be established to whom that business would be exclusively committed.
The Committee then rose, reported progress and asked leave to sit again at 2 P. M. And the Senate took a recess.
AFTERNOON SESSION.
The Senate reassembled at 2 o'clock, the Lieutenant Governor in the chair, and immediately resolved itself into a Committee of the Whole and resumed the consideration of the Joint Committee's bill [S. 238] for a division of the State for judicial purposes, Mr. Dwiggins again in the chair.
Mr. GLESSNER said complaints came up from all parts of the State that the present judicial system is inefficient and inadequate to meet the necessities of the people. A reformation is certainly needed, and in his opinion the first step in that direction is the abolition of the Common Pleas Courts, whose existence gives rise to confusion and embarrrassment. The arguments urged against the bill had reference to the provisions of the bill in detail, but did not effect the principle which it embodied. If the districts are not properly arranged; or if the terms of courts provided for them are too page: 422[View Page 422] long or loo short, these defects can easily be remedied. To the principle of the bill he believed no valid objection could be taken.
Mr. STEELE said the reasons presented for the passage of the bill were not so cogent as to convince him of the necessity for taking this step in a hurry. He could not see why the Common Pleas Court should be abolished until a better system is found. One gentleman said they proposed that the Circuit Courts should do all the business now done by other courts. Another proposes that another Judge shall be created to be called Common Pleas or Probate, or Surrogate, or by some other name. He agreed that the business should be separated, that the Common Pleas Judge should have jurisdiction of probate business and nothing else. He would have their circuits made larger and confine them to probate business. In this way, quite a large number of them could be dispensed with, and what is saved in that way may be given to the Circuit Courts. If the probate business is intrusted to the Circuit Judges it will always lag behind. The Judge will not reach it until about the end of the term, when he is fagged out with the attending to the trial of cases, and he will call some lawyer to attend to it for him. If this business is committed to a particular court, and its jurisdiction confined to that, the judges will become familiar with the business, and it will be transacted more promptly and more intelligently than by any other system. It is suggested that we may establish a County Surrogate, and his salary is estimated at $1,000 per annum. As there are 92 counties in the fetate, that alone would amount to $92,000, nearly double what is now paid to the Common Pleas Judges. It is evident that this question should be very carefully considered by every Senator, and time should be given to mature the plans. It would be far better to take no action for the present than to adopt a doubtful system. He therefore favored the reference to a special committee.
Mr. DAGGY'S amendment to Mr. Rhodes' substitute, to strike out the Common Pleas Courts, was lost.
Mr. BROWN moved to ptrike out the word "territorial" from the substitute, so as to instruct the committee to make such changes in the number and jurisdiction of the Common Pleas Courts as may be necessary.
Mr. GLESSNER moved to amend the amendment by striking out all of the instructions. See bottom of first column page 125.
