The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-11-01
SHOULDN'T OVERLOOK IT
An Important Amendment to the
Constitution.
TO SECURE A FULL COURT
Under the Present Law II Sometime,
Happens hat Only Ono Justice
Is Qualified to Sit in
q Case.
To the Editor Of the Standard.

To the Editor OF the Standard.
One day asst week you called at
tention to the amendment to the con-
stitution in reference to the supreme
court. which is to be void upon at the
next election. Lest this amendment
should be overlooked. II occurs to me
that the attention Of h electors
should be prominently directed in this
matter. The proposed amendment. in
substance. provides that II. for any
reason. a justice Of the supreme court
is disqualified to sit in the hearing of a
particular case. q district Judge shall
be called upon to sit az = supreme court
Judge for the hearing Of that particular
case.
The object of the provision is. OF
course. to secure . full court of three
justices for the determination OF every
case that comes before II. This amend
ment was suggested to the legislature
by the Justices of the supreme court
thmselves. The suggestion came from
their own observation as to its necessi-
ty. History a shown that whenever
a new justice came upon the supreme
bench. IL he had been a practicing law
yer, he was disqualified as to all of
the cases in which he had been counsel;
or. II he had been a district Judge. he
hesitated to sit in review upon his own
decisions. M always preferred to be
excused from participation In such cas-
es. During the two or three first years
of the history of the supreme court of
the state all OF the Justices were new
upon the bench. The chief justice came
frop, tho farrifnriQl district cOnrt- and
the two associates came directly from
the practice OF the law. The result Is
hat we find the report OF the court dur
ing hat period full of decisions by two
justices only. Again. when Chief JUS
tice Pemberton came upon the bench,
he had been for a short time a district
judge. and. prior to that time, an ac-
tive practitioner. The result was that
all OF the cases in which he had been
counsel. or In which he had sat as dis
trict Judge, were heard by his two as
sociates lone. There was one case at
that time in which Chief Jus
tice Pemberton had been coun-
sci on one side, and n OF his asso-
ciates had been counsel on the other
side. There was therefore only m jus
tice qualihed to sit In the case. The
appeal was therefore held up for -four
years. and there was an opportunity
to hear II only upon the accession OF
Justice Buck.
Another notable instance was a case
heard at the end OF the yea 1896. In
this case Justice Hunt did not sit. for
the reason hat he had made an order
In the case when he was district Judge,
and preferred not to participate in the
hearing. The chief justice and the as
sociate who heard the case disagreed
upon the fnal decision. This was during
the last week Of 1896. Upon the acces-
sion OF Justice Buck, on the first of jan
uary. 1897. the case was re-heard, but
Justice Buck was then disqualified. by
reason of having tried the case as dis
that as he was not absolutely disquali-
fed. he would sit in the hearing. The
case being under Amusement by the
chief justice and Associate Justice Hunt,
Justice Buck died. Upon the appoint
ment of Justice Pigott a re-hearing
was again granted and the case finally
disposed of. Thus there were three
hearings in this case; whereas, II a
district Judge could have been called
to sit In 1896, the case would have been
finally disposed Of at that time. IL Is
10 avoid these difficulties that the
amendment To the constitution n pro-
posed. II the amendment becomes a
part OF the constitution. there can al
ways be a full court obtained for the
decision OF every case. I have never
heard any objections made to such an
amendment and do not know that any
exist. The matter seems to me, and
I think In this the lawyers OF the state
agree. to be sufficiently important to
deserve attention at the election next
Tuesday. Yours very truly.
WILLIAM II. DE WITT.
Butte. Oct. 81. 1898.