ADDRESSES

ADDRESS OF THE PRESIDENT, ELEAZER WAKELEY, OF OMAHA, AT THE FIRST ANNUAL MEETING

JANUARY 2, 1901

GENTLEMEN OF THE ASSOCIATION-AS set forth in the preamble to its Articles of Association, this body was organized "for the advancement of the honor and dignity of our profession and encouragement of cordial intercourse among the members thereof."

It should be easy to select, within the scope of those objects, a suitable topic for the address which the President is directed to deliver at the regular meeting of the Association next succeeding his election. In the wide domain of the law, in these days of progress, advancement, and expansion in the pursuits and activities which engage mankind, and with which the law and the profession, if they are to fulfil their broad mission, should keep abreast, there are subjects and questions to invite attention and discussion, almost without limit. If the Association is to have the permanence and continued stability which are hoped for it, there will be many and fit opportunities in the future to dwell on abstract themes and theories and aspects of the law always interesting to its students and exponents.

But, in the judgment of your present presiding officer, there are existing facts and considerations of a practical character so pressing and of such public moment that, for the time, they demand your attention to the exclusion, if need be, of subjects more remotely bearing upon the interests, honor, and welfare of the profession. Using words which have, of late, been familiar, "it is a condition, not a theory, that confronts us"; and this body of practicing lawyers will have no difficulty in drawing the correct inference as to their application.

In sec. 13, of art. I, of the Constitution of Nebraska-the Bill of Rights-it is written: "All courts shall be open, and every person,

for any injury done him in his lands, goods, person, or reputation, shall have a remedy by due course of law, and justice administered without denial or delay." In these few words are embodied two great and vital principles of remedial law: First, that the citizen shall have a remedy for all wrongs to property, person, and reputation, not dependent upon the grace or favor of any officer or any department of the government, but demandable as an ordained right. In so providing, the framers of our State constitution recognized the imprescriptible right interwoven in the fabric of our government, and finally embodied in Amendment V of the Constitution of the United States, in that brief clause declaring that no person shall "be deprived of life, liberty, or property without due process of law." No American lawyer need be told how far-reaching and effective this provision has proved to be in the conservation and protection of private rights throughout our Union; and what a palladium of defense those few words have been, in cases innumerable, against reckless or inconsiderate legislation. Second, that "justice must be administered without denial or delay." It is not saying too much that, in the practical affairs of life and the exigencies which continually arise in the rush and hurry which characterize our American business, and even our home life, an undue delay of justice is, many times, as harmful and fatal as a denial of justice. Be that as it may, the people of this State, for whom its. constitution was framed, have a right to require-not merely to ask, but to demand-that there shall be no ruinous or wrongful delay of justice which can be avoided; and when such delay exists they have a right to appeal to their representative, the honorable the legislature of the State, to do whatsoever may be within its constitutional functions to remedy the evil.

That such a condition has been reached in the litigation of this State and such delay exists in a deplorable degree need not to be demonstrated to lawyers or litigants. It is everywhere conceded; and we are brought to the only debatable question-Is there an available remedy, and what is it?

First, as to the cause: Not many years since, in the flood of litigation, growing largely out of the phenomenal increase of population and business in the cities and rural counties of Nebraska during the decade preceding the years 1892 and 1893, the congested dockets of the district courts, especially in the larger centers of

business and commercial activity, called for the constitutional expedient of increasing by law "the number of judges of the district courts and the judicial districts of the State." The result was that, commencing in 1883 with the adding of a second judge in the third district, and increasing the number of districts from six to ten, it ended in 1889 with fifteen judicial districts, and twenty-eight judges the present number.

It does not admit of doubt that, in the present state of litigation, the provision for district judges is ample for the due consideration and dispatch of all business in the trial courts of the State. There can now be no necessity for a hurried or unsatisfactory consideration of causes in those courts, or for indulging an ambition to be known as an expeditious "docket-clearer," resulting too often in a crude administration of justice, in needless wrong to litigants, and in exasperation to lawyers who have prepared their causes on the facts and the law with a research, completeness, and fidelity to their clients, and to their own reputation, that are entitled to the most deliberate attention which the time, industry, and patience of the court can accord. Not only that, but it may be a serious problem for the legislature and the bar of the State whether, before the next quadrennial election of district judges, it may not be expedient, on the score of economy and convenience to parties and their attorneys, that there be a new arrangement of districts, decreasing the number and the allotment of judges thereof. As at present organized, we know that, with rare exceptions, a case can be commenced, prepared for trial and hearing, and finally determined in the district court with reasonable dispatch-often in the first, and seldom later than in the second term after its commencement. Experience in this and in other states has shown that, ordinarily, such dispatch is all that is practicable and consistent with due preparation and full and patient hearing of the cause.

What, then, is the delay, its cause, and its remedy? I have referred to the constitutional injunction that there shall be neither denial nor delay of justice in the courts of Nebraska. But, without intending it, and from failing to fully forecast the future, the framers came near to nullifying this prescript by another provision, namely, that "the right to be heard in all civil cases in the court of last resort, by appeal, error, or otherwise, shall not be denied"; and, further, by a large grant of original jurisdiction, concurrent with that of the district courts.

Experienced lawyers in this State well know how potent these provisions have proved to be in flooding the Supreme Court with the appalling volume of business which in recent years has outrun its extreme capacity for labor and thought, and in bringing about the intolerable condition which, without the fault of its members, now exists in that tribunal. Passing over the statistics so thoroughly known to the bar, and all computation and speculation as to the future under the present disabilities, we have only to address ourselves to the immediate problem: What remedy is needed, and what remedy is, at present, attainable?

To deal radically and effectively with these organic defects, as I regard them, and make provision in other particulars against continued accumulation and delay could, in my judgment, be fully accomplished only through a general revision of the constitution. But the uncertainty and the necessary delay, under any circumstances, of reaching a result by that method make such a remedy wholly inadequate for the present, if not hopeless in the near future. We must therefore direct our inquiry and our efforts in the way of advice and suggestion to such legislation and methods as seem now available. In seeking these, I feel warranted in assuming that two main propositions are conceded and in the minds of the bar as the result of general discussion and interchange of views, namely : That there must be an increase in the number of judges of the Supreme Court at the earliest time possible.

That, in the meantime, and awaiting such constitutional relief as may be had, the legislature, at its session now commencing, should do whatever is within its constitutional competency to promote the desired end.

As to first of these measures, two principal methods or plans have been suggested which, probably, will be thought most available for present exigencies, and are to be sought by the submission and adoption of amendments to the constitution through the action of the legislature. These are:

1. A single court, similar to the present, except as to the number of judges, to be composed of the whole number thereof, whatever it may be, sitting together for the hearing of causes.

2. A court divided into departments, each of which shall have jurisdiction to hear and determine causes under proper regulations as to labor and duties, but to sit in banc in such cases as may be deemed advisable.

Each of these would have its advantages; and there may well be different opinions as to which would be preferable and prove most satisfactory on trial. One fact, however, can not well be questioned that is, that a given number of judges sitting in separate divisions or departments could hear more causes and dispatch more business than the same number sitting together in banc. It is obvious that a court composed of, say, five or six judges sitting together could hear no greater number of causes, on oral argument, than a court composed of but three, although there might be substantial gain in time and labor by distributing the causes for the writing of opinions and the detail work connected with their consideration.

To illustrate. While the presence and participation of the nine judges of the Supreme Court of the United States in the hearing of every cause aid in imparting the dignity which belongs to that great tribunal, and add weight to its decisions, whether unanimous or not, it is beyond doubt that, sitting in three divisions or departments, it could dispose, if not of three-fold the number, certainly of a greatly increased number of causes, and make corresponding progress upon its docket, still largely in arrears.

Without here entering upon a discussion of the subject, I am content to state, for whatever it may avail, my own view, rather as a member than as an officer of the Association. Under the existing conditions, and with the imperative need of doing now whatever is practically possible to lessen the paralyzing accumulation of business in the Court, I think a constitutional amendment should be submitted at the general election in 1902, increasing the number of judges of the Supreme Court to six, and dividing the Court into two departments, each composed of three judges, with equal jurisdiction, to sit separately, except in cases of necessity or of special importance, in which they should sit in banc. As between a single court of five judges and a department court of six, or even nine judges, the difference in expense to the State would be too small for serious consideration; and I can not think it would weigh at all with the intelligent citizens of Nebraska in whose interest, more than in the interest of the Court itself or of the bar, the measure would be proposed.

As to the intermediate relief which it will be in the power of the legislature to extend, pending proposed amendments to the consti