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us 38022.2

Amendments to Constitution

and

10994

Proposed Statutes

with

Arguments Respecting the Same

To be Submitted to the Electors of the State of California at the
General Election on

TUESDAY, NOVEMBER 3, 1914

Cacitornia - Seructary of
tary of rituals

Index, Certificate and Form of Ballot will be found in last pages
Proposed changes in language are printed in black face
Provisions to be repealed are printed in italics

CERTIFIED BY THE SECRETARY OF STATE

AND PRINTED AT THE STATE

PRINTING OFFICE

1914

US38022.23

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EXTRA SESSIONS OF DISTRICT COURTS OF APPEAL. Assembly Constitutional Amendment 32 adding section 4a to article VI of constitution. Authorizes governor to call extra sessions of district courts of appeal; requires such call when requested by chief justice of supreme court or presiding justice of district court of appeal; provides that governor, chief justice and presiding justice shall each select one of the three judges of such sessions from judges of any district court of appeal or superior court who shall serve without further compensation; provides for assignment of causes thereto, jurisdiction thereof, and termination of such sessions.

Assembly Constitutional Amendment No. 32-A resolution to propose to the people of the State of California, an amendment to the constitution amending article VI thereof, by inserting therein a new section to be known as section 4a, providing for the holding of extra sessions of the district courts of appeal, and the selection, designation and appointment of members of any court of appeal or judges of any superior court, to act pro tempore as justices of said district courts of appeal to hold such extra sessions thereof.

The legislature of the State of California, at this fortieth session, commencing on the 6th day of January, 1913, two thirds of all of the members elected to each of the houses of said legislature voting in favor thereof, hereby propose that article VI of the Constitution of the State of California be amended by adding thereto a new section, to be known as section 4a, which section shall read as follows:

PROPOSED LAW.

Section 4a. The governor of the State of California may, and at the request of the chief justice of the supreme court of the State of California shall direct that an extra session or extra sessions of the district court of appeal of any district be held, and upon the request of the presiding justice of the district court of appeal of any district, shall direct that an extra session of such court be held. Each extra session of such court of appeal of any district shall be held by three judges who may be justices of the court of appeal of other districts of the State of California, or judges of any superior court within the state, one of whom shall be selected by the governor of the State of California, another by the chief justice of the supreme court of the State of California, and the other by the presiding judge of the court of appeals of the particular district in which the extra session is, or extra sessions are to be held. Said justices and judges so selected shall be justices pro tempore of said courts of appeal for the purpose of holding such extra session or sessions of said court. More than one extra session of the court of appeal of any particular district may be held at one time; provided, that each section shall be held by three justices pro tempore consisting of justices of the district courts of appeal of other districts, or judges of the superior court, selected as hereinabove set forth. During any extra session of the district courts of appeal, the presiding justice of the district court of appeal of such district may sit during such extra session with the said justices pro tempore holding such extra session, or he may designate one of the said justices pro tempore so holding said session, to act during such extra session as presiding justice thereof; provided, however, that whenever the presiding justice of the district court of appeal of such district shall so sit during such extra session with said other justices pro tempore holding such extra session, the concurrence of the three justices pro tempore holding such session, or of two of said justices and such presiding justice of the district court of appeal of such district, shall be sufficient to pronounce a judgment of said district courts of appeal of said district in any of the appeals, actions, proceedings or matters heard by, or submitted to such extra session of said court or the justices thereof. The presiding

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justice of the court of appeal of the district in which any such extra session is being held or to be held shall have power to assign causes and appeals pending in said court to such extra session, for consideration and decision. Said extra session of said district court of appeal and the said justices pro tempore holding the same, shall have jurisdiction to determine all causes, appeals, proceedings and matters that shall be so assigned to them for consideration and decision during such extra session, with like force and effect as though such causes, appeals, proceedings and matters had been heard by, submitted to and determined by the duly elected, qualified and acting justices of said district court of appeal of the district in which such extra session is, or extra sessions are being held, or by such court. No justices pro tempore of the court of appeal of any district shall be qualified to participate upon the hearing of any cause in which, or in any proceeding in which he has acted as judge in any other court. No justices pro tempore of any court of appeal of any district shall receive any compensation for acting as such, other than that attached to the office which he holds at the time of his selection as such justice pro tempore, but shall be entitled to his actual expenses. Whenever any justice pro tempore of the supreme court is for any reason disqualified or unable to act in a cause pending before it, or any extra session thereof, the governor or justice by whom he has been selected shall forthwith select some other justice of the district court of appeal or judge of the superior court to act in his place. At any time after the causes and matters which shall have been assigned to such extra session of any district court of appeal or the justices pro tempore thereof, shall have been finally determined, the supreme court of the State of California, by an order entered upon its minutes, may terminate such extra session or extra sessions.

ARGUMENT IN FAVOR OF ASSEMBLY CON. STITUTIONAL AMENDMENT NO. 32.

The proposed amendment does not in any respect change or modify any of the existing constitutional provisions, but merely supplements those relating to the supreme court and district courts of appeal by conferring upon them such additional authority as will enable them, only, however, when the exigencies of the situation require, and then at practically no expense, to speedily dispose of pending litigation, to the incalculable benefit of the litigant.

The great length of time intervening between the commencement of an action and its final termination by the supreme court, without any fault on its part, has caused frequent complaint and brought about severe criticism of the judicial system. In many cases this delay has worked great hardship upon the parties, and ofttimes results in a miscarriage of justice. This is particularly true of the litigant whose entire substance is involved in the litigation.

As the state becomes more populous litigation increases. While the creation of additional trial judges permits this litigation to be rapidly disposed of in the lower court, it increases the burdens of the appellate courts without providing any remedy for their relief.

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The supreme court has the right, which it frequently exercises, to transfer appeals pending before it, to the district courts of appeal. If extra sessions of the district courts of appeal are held, the supreme court can transfer to such district courts of appeal much of the litigation then pending before it, so that when one or two 0 extra sessions are held, no valid reason will exist why all pending litigation in the supreme court, not actually under submission at the time such extra sessions are held can not be readily disposed of so that at the termination of such extra sessions a case will appear for argument upon the next calendar called by it, after the filing of the transcript on appeal. When this is accomEplished, no further necessity will exist for the E holding of any extra session of the district courts of appeal until either court gets behind in its work.

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If this constitutional amendment is adopted a method will be devised, practically without expense to the state, by which the increased number of appeals will be rapidly taken care of and finally concluded with little delay.

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The determination of litigation by an extra session of the court of appeal does not deprive the litigant of having such appeal finally passed 0 upon by the supreme court, because, as we all know, the litigant is entitled to apply to the supreme court for a rehearing, which rehearing will of course be granted in the event the decision of the court of appeal is incorrect.

JAMES J. RYAN,
Assemblyman Twenty-third District.

ARGUMENT AGAINST ASSEMBLY CONSTI.
TUTIONAL AMENDMENT NO. 32.

The reasons why Assembly Constitutional Amendment No. 32 should not be adopted are briefly enumerated as follows:

First-The principal objection to this amendment is that it is not needed. Investigation of the records of the courts of appeal, for the past ten years, shows that the calendars are cleared regularly in remarkably short time, and that there is absolutely no congestion in these courts. Inquiry made of those justices of the courts of appeal who are available to the writer indicated that the justices themselves do not consider extra sessions at all necessary.

Second-The extra sessions provided for by this amendment would necessarily have to be pre

sided over by judges called from the superior courts, which courts, at the present time in most counties, are already congested and need the attention of all their judges. Justices of courts of appeal of one district would not be called to preside in extra sessions in another district, because where congestion exists in one district now, sufficient cases are transferred to an uncongested district to relieve the situation. If there is sufficient regular business to justify any considerable number of extra sessions, a new district should be provided instead.

Third-The method provided for calling these extra sessions is unsafe and ill-advised. Any one of five officials can compel the holding of an extra session, while the supreme court, only, has power to adjourn it.

Fourth-It is questionable whether a judge of the superior court could act as such, and at the same time sit in extra session as justice of the courts of appeal. It is practically certain he could not sit in trial and also sit upon appeal in the same case, particularly in cases where motions for new trial had been denied in the lower court, and came up before the same judge for hearing on appeal. Another question would arise as to the power of the regularly elected justices of a district court of appeal to grant or deny a rehearing of a case decided in extra session, for the amendment states that the decisions of extra sessions shall have "like force and effect as though such causes *** had been *** determined by the duly elected *** justices."

Fifch-This amendment would have the effect of reating further congestion in the superior courts, and would not be of material relief to the supreme court. A readjustment of the classes of cases that should properly come up on appeal in the supreme court, or in the courts of appeal, would relieve the congestion in the supreme court without creating congestion in the superior courts.

Sixth-The language of this particular amendment is very confusing in parts, particularly its reference to justices pro tempore of the "Supreme Court," when the context clearly indicates that it means "Court of Appeal," and also where the word "section" is used in one place, but evidently intended the word "session."

For the above mentioned reasons, the writer
believes this amendment should be defeated.
H. STANLEY BENEDICT,
Assemblyman Sixty-third District.

MISCARRIAGE OF JUSTICE.

Senate Constitutional Amendment 12 amending section 4 of article VI of constitution. Omits from present section word "criminal," thereby providing that no judgment shall be set aside or new trial granted in any case, civil or criminal, for misdirection of jury or improper admission or rejection of evidence, or for any error as to any matter of pleading or procedure, unless after examination of entire cause, including the evidence, court is of opinion that error complained of resulted in miscarriage of justice. Senate Constitutional Amendment No. 12, a resolution to propose to the people of the State of California an amendment to the constitution of said state, by amending section four and one half of article six thereof, relating to appeals. The legislature of the State of California, at its regular session commencing on the sixth day of January, in the year one thousand nine hundred thirteen, two thirds of all the members elected to each of the two houses of said legislature voting in favor thereof, hereby proposes an amendment to the Constitution of the State of California. by amending section four and one half of article six thereof, to read as follows:

PROPOSED LAW.

Section 41. No judgment shall be set aside, or new trial granted, in any case, on the ground of misdirection of the jury. or of the improper admission or rejection of evidence, or for any error

as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

Section 41, article VI, proposed to be amended, now reads as follows:

EXISTING LAW.

Section 4. No judgment shall be set aside, or new trial granted in any criminal case on the ground of misdirection of the jury or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless. after an examination of the entire cause including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.

ARGUMENTS IN FAVOR OF SENATE CONSTITUTIONAL AMENDMENT NO. 12.

The decisions of the supreme court of California abound with instances where verdicts of juries and judgments of the lower courts have been reversed for failure to comply with trivial and technical requirements that in no way affect the merits of the action. As a result of such reversals, which usually occur from three to five years after the commencement of the action, the courts are compelled to take up a further three or five or more years of their time in going over the same controversy, often with a practical miscarriage and denial of justice to one of the parties to the action and always to the inconvenience of other litigants. The purpose of Senate Constitutional Amendment No. 12 is to help overcome these unnecessary delays, put an end to such interminable litigation, if possible, and to change the trial of cases from a test of the craftiness, ability and skill of opposing attorneys into an honest endeavor to mete out justice as between the parties. This rule has heretofore been adopted in criminal cases and has been satisfactory. As property is less valuable than life or liberty it should be equally satisfactory in civil cases. WILLIAM KEHOE, State Senator First District.

Senate Constitutional Amendment No. 12 is designed to prevent the reversal of civil cases by courts of appeal on purely technical grounds.

In 1911 the writer had the privilege of introducing in the legislature an amendment to the constitution, which provided that in all criminal cases, no judgment should be reversed, on appeal, except when such judgment would result in a substantial miscarriage of justice. This amendment was unanimously adopted by both houses of the legislature, was overwhelmingly ratified by the people, and is now known as section 4 of article VI of the state constitution. The present proposed amendment seeks to extend the same provision to civil cases. It, likewise, was adopted by the unanimous vote of both the senate and assembly.

The purpose of our judicial system is to try cases on their merits. Often this purpose, however, is thwarted by having decisions of the lower courts reversed because certain rules of procedure were broken. In scores of cases appellate judges have reluctantly set aside meritorious decisions on no other ground than that during a long and heated trial, counsel for the

successful party committed some technical breach of legal procedure. As Professor Roscoe Pound of Harvard has said: "Our appellate courts do not try the case; they only try the record; they only decide whether all the outworn subordinate rules of the game were carefully followed."

Former President Taft, in speaking of the excessive and unnecessary delay in legal procedure, declared: "There is no subject upon which I feel so deeply as upon the necessity for reform in the administration of both civil and criminal law." As an example of such delay in California it has been shown that for all the cases reported in Vol. 145 of the California Reports, an average of 1003 days, or almost three years, elapsed between the filing of an appeal and the final judgment, while the average time for the completion of a case through all the courts was 2175 days, or almost six years. Much of this delay is occasioned by the number of cases appealed on purely technical grounds. In England, where new trials are not granted on such grounds, the court of appeals, acting for 32,000,000 people, grants only about twelve new trials per year. In contrast to this, in one county alone in the United States, with a population of less than 100,000 there were 38 appeals in one year, of which 17 were reversed for technical errors, which did not go to the merits of the case.

The adoption of the proposed amendment will clothe the appellate courts with power to review all points involved in a case-the facts as well as the law. If the decision of the lower court is found to be substantially correct, that judgment will be affirmed. The incentive for getting error into the record for the sole purpose of securing an appeal being removed, few cases will be appealed and litigants will be saved both delays and expense. It will invest the appellate courts with power to sustain a verdict rendered by a jury when such verdict is in accordance with the facts, even though it violates some archaic rule of procedure that under existing law would require a reversal of the decision.

Senate Constitutional Amendment No. 13, a reso

lution proposing to the people of the State of California an amendment to section thirteen and one half of article eleven of the Constitution of the State of California, relating to the place of payment of bonds, an the interest thereon, of counties, cities and counties, cities, municipalities, irrigation districts, and other public corporations, and to the money in which such bond's and interest may be made payable. The legislature of the State of California, at its regular session, commencing on the 6th day of January, in the year one thousand nine hundred and thirteen, two thirds of all the members elected to each of the two houses of said legislature voting thereon, hereby proposes to the qualified electors of the State of California that section thirteen and one half of article eleven of said constitution be amended so as to read as follows:

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Since 1911, when the application of this principle to criminal cases was adopted, the appellate courts have repeatedly referred to the increased power granted them to disregard errors not affecting the merits of a case, and by the extension of these powers to civil cases, the machinery of our courts will be materially simplified and substantial justice done to litigants.

A. E. BOYNTON, State Senator Sixth District.

PLACE OF PAYMENT OF BONDS AND INTEREST. Senate Constitutional Amendment 13 amending section 13 of article XI of constitution. Authorizes any county, municipality, irrigation district or other public corporation, issuing bonds under the laws of the state, to make same and interest thereon payable at any place or places within or outside of United States, and in domestic or foreign money, designated therein.

PROPOSED LAW.

Section 131. Any county, city and county, city, town, municipality, irrigation district, or other public corporation, issuing bonds under the laws of the state, is hereby authorized and empowered to make said bonds and the interest thereon payable at any place or places within or outside of the United States, and in any money, domestic or foreign, designated in said bonds. Section 131, article XI, proposed to be amended, now reads as follows:

EXISTING LAW.

Section 13. Nothing in this constitution contained shall be construed as prohibiting the state or any county, city and county, city, town, municipality, or other public corporation, issuing bonds under the laws of the state, to make said bonds payable at any place within the United States designated in said bonds.

EXEMPTING EDUCATIONAL INSTITUTIONS FROM

TAXATION.

Senate Constitutional Amendment 15 adding section 1a to article XIII of constitution. Exempts from taxation buildings, grounds within which same are located not exceeding one hundred acres, equipment, securities and income used exclusively for educational purposes, of any educational institution of collegiate grade within this state not conducted for profit.

Senate Constitutional Amendment No. 15, a reso

lution to propose to the people of the State of California an amendment to the Constitution of the State of California by adding a new section to said constitution to be numbered section one a of article thirteen thereof, relating to exempting certain property of educational institutions of collegiate grade from taxation. The legislature of the State of California at its regular session, commencing on the sixth day of January in the year nineteen hundred thirteen, two thirds of all the members elected to each of the two houses of the said legislature voting in favor thereof, hereby proposes to the qualified electors of the State of California, the following amendment to the Constitution of the State of California, by adding a new section thereto to be numbered one a of article thirteen thereof, to read as follows:

PROPOSED LAW.

Section 1a. Any educational institution of collegiate grade, within the State of California, not conducted for profit, shall hold exempt from taxation its buildings and equipment, its grounds within which its buildings are located, not exIceeding one hundred acres in area, its securties and income used exclusively for the purposes of education.

ARGUMENT IN FAVOR OF SENATE CONSTI-
TUTIONAL AMENDMENT NO. 15.

First-Every state in the union, except California, exempts college property from taxation. California should not be the only state to discourage the investment of private capital in higher education. In all other states the income from benefactions to colleges may be used wholly for the purpose for which such benefactions are made; here it must be in part diverted to such objects as road building and the lighting of streets. Thus California suffers a distinct disadvantage with patrons of education, such as the great philanthropic boards of the East. The state should assure outsiders desiring to make gifts for education in California that every dollar will be used for the purpose intended.

Second-The various colleges of the state are performing a service of the highest importance, at a cost far in excess of the amount derived from tuition. The state should not add the burden of taxation to their other expenses, which are met by endowment and by private gifts.

Senate Constitutional Amendment No. 17, a resolution proposing to the people of the State of California, an amendment to the Constitution of the State of California, by adding a new section to article XIII thereof, to be designated as section four of said article XIII of the Constitution of the State of California, relating to the exemption of vessels engaged in commerce from taxation.

Third-California has already by special constitutional amendments exempted some schools from the taxation of their educational "plants," such as Stanford University, and Cogswell Polytechnical College in San Francisco. The proposed amendment will abolish discrimination, treating all colleges alike.

Resolved by the senate, the assembly concurring, That the legislature of the State of California, at its regular session, commencing on the sixth day of January, nineteen hundred thirteen, two thirds of all the members elected to each of

Fourth-The proposed amendment will not take a dollar from the state treasury itself, since the state revenues are no longer derived from the general property tax. This amendment merely enables the localities where colleges are situated, and which therefore receive the chief benefit from them, to exempt them from taxation.

Fifth-The total cost of this proposed policy is insignificant. The taxes paid in 1912-1913 by all the institutions known to be affected by this amendment amounted to only $20,976, a sum wholly inconsiderable from the standpoint of county and city government, but imposing a heavy burden on the slim financial resources of the colleges.

Sixth-The amendment as drawn is carefully safeguarded against possible abuse by the following limitations:

(a) It exempts only institutions of collegiate grade.

(b) Such institutions can not be conducted for profit. Any institution receiving an income from students in excess of its expenses would be excluded from exemption.

(c) The exempt property is limited to buildings, equipment, and grounds, with securities and income, "used exclusively for the purposes of education." Real estate held for investment or revenue will be taxed just as at present, only the educational "plant" actually in use being exempt from taxation.

EXEMPTING VESSELS FROM TAXATION.

Senate Constitutional Amendment 17 adding section 4 to article XIII of constitution. Exempts from taxation until and including January 1, 1935, except for state purposes, all vessels over 50 tons burden, registered at any port in this state and engaged in transportation of freight or passengers.

(d) The land which a college will hold exempt as constituting its "campus" is limited to 100 acres, thus preventing the abuse of the law by an institution holding large areas ostensibly as "campus" but actually for investment and profit.

Seventh-So thoroughly convinced were the lawmakers that this amendment is right and fair that it passed the last legislature with but one dissenting vote in either chamber.

A. E. CAMPBELL,
State Senator Seventeenth District.
LEE C. GATES,
State Senator Thirty-fourth District.

the houses of said legislature voting in favor thereof, hereby proposes to the electors of the State of California, that a new section be added to article XIII of the Constitution of the State of California, to be known and designated as section four of article XIII of the Constitution of the State of California, and to read as follows:

PROPOSED LAW.

Section 4. All vessels of more than fifty tons burden registered at any port in this state and engaged in the transportation of freight or passengers, shall be exempt from taxation except for

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