The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1912-07-07

whose opinion is adopted the second,
and in less degree, upon his associates
who only concur in his opinion. It
would seem that a system that will
admit of such an Interpretation of its
practical operation and allow that
graduation of responsibility for its
product, in so important a public serv-
ice. cannot be abandoned too speedily.
for 1t Is wrong in essence.
"a. 1t contemplates that the associates
of him to whom a case Is assigned and
who submits It TO the Consultation will
decide questions presented by appeal
without being advised first hand by
their own investigation, of the matter
and questions presented, unless, his as
sociates can do the double, and inn
possible. service of investigating each
record and the arguments and also or
each preparing for the consultation his
quota of assigned cases. The Injustice
of this system to the members of the
court is apparent
IS. It operates, in a very large per cent
of the appeals, to restrict the reading and
careful consideration of the briefs of
counsel to one member, only, of TINS
court; for 1t Is not possible for a MEM
Der to read and consider the briefs In
cases assigned to his associates, and also
prepare the cases assigned to him for the
consultation of the justices. This, in
my opinion, is the chief reason why it
has been necessary during the term 1911
10 for this court to spend upward of one
month of the eight set apart to the term
to the consideration of rehearngs; for
it seems to be generally understood and
correctly, that applications for rehearing
are read aloud to the justices in consuita.
ton. The practitioner who contributes
to the preparation of mis- briefs on appeal
his full measure of mental and physical
effort. as well as the merely material
equipment which one in his calling must
and does, in varying degrees maintain,
is certainly, at least, entitled to a sys-
tenn that will allow every one of those
whose duty 1t Is to decide the contest
to have the initial benefit and advantage
of what he has wrought out as bearing
on the issue or issues the appeal pre-
sents.
sc. BY unwiseiy matchmaking the in
itial work of the court to the limits which
prevail under our present system, the
celebrity of decision of submitted appeals
largely depends upon the Individual
health. characteristics and methods OF the
members of the court Some judges are
slower than others; same are more eau
tious in attaining conclusions than others:
and some are more thorough and exhaus-
tive than others. To commit the advent
of an appeal to the consultation of the JUS
tees to such varying factors arising from
the personal characteristics or methods or
physical condition of the members of
the court operates a discrimination be-
tween litigants, notwithstanding the rota-
tional assignment of cases, and shifts the
responsibility for delay in decision from
the court as such to a single member
who may be overburdened by taking a
succession that was overburdened, or,
who is slower in the work or more care
full or exhaustive than his associates.
81. And lastly, it is, at least, calculated
to invest the member TOT whom case is
assigned and who prepares the opinion for
submission to the consultation, with
strong, often irremovable, conviction that
the conclusion he has attained in his
chamber Is sound, regardless of the con-
siderations which his associates, who have
not had the advantages he has had, think,
at least tentatively should affect the con-
clusion in the premises. This is unde-
srable. The vices of the system are Sc
sious. They go to the soundness OF de-
cision. They invite agreements upon the
basis of confidence In brother judges
work and conclusion, rather than, as 1t
should be upon converging of the minds
of the Judges to conclusion drawn from
first hand knowledge of fact and law
from record and brief.
"Ought an appellate judge be necessi-
tated, directly or indirectly, to take part,
In the performance of his duty, in a pro-
cess that affects the rights of life lib
erty and property unless he may inform
himself, by at least reasonable effort of
what the trial judge or chancellor, whose
rulings and acts the appellate tribunal
is called to review. had before him, upon
which to rule or act and, also, what
counsel say for or against the correctness
of the rulings or acts of the trial judge
or chancellor?
IF it is assumed that for these, or for
nf a n
this regard, is undesirable and unsatis-
factory, the real inquiry is, what prac-
ticable change can be made to avoid the
deformites in the present method?
THE present methods fault lies in the
inability of, and the want of opportunity
and facilities for, each member of the
court to investigate for himself each case.
This can, of course be obviated by either
printing seven or more copies of the rec
ord, or of so much thereof as is neces-
sary to present for decision the ques-
ton sought to be reviewed on appeal, or
by abstracting the record as at present
prepared by the clerks and registers of
the. state and printing or typewriting
say, ten copies of the abstract, with the
right of criticism of the prepared alb
stract preserved.
I'm more than 30 of the states of the
union, the records on appeal are either
printed or distracted as indicated: and
the supreme court of the United states
and the United Stats circuit court OF
appeals are afforded printed records.
"A leading practitioner in this court
who has made some Investigation, writes
me that he is of the opinion that records
can be printed for zoe per 100 words, if
measurably large contracts We're made
therefor by the state or other proper au-
thority for judicial printing in conven-
iently arranged divisions of the state. The
present cost for transcript making is 15c
per 100 words, difference of &c between
the two processes. An arbitrary fee of,
say S. a case could be allowed the clerks
and registers for arranging, general in
dexing and supervising the printing for
an appeal All to constitute cost in the
cause.
''Fifteen states now have their records
on appeals printed. If practicable in
our state, 1t is, obviously the most de-
slrable method. 1t is, also, the view of
many practitioners that our present
transcripts contain. in very many cases,
useless matter, such as extended and con-
tinued recitals of the court organizations,
and jury formations: the full setting out
of pleadngs that might be condensed to
accurate statement and testimony, where
a condensed statement of the general eff
feet would suffice in cases not involving
error vel non In giving or refusing the
affirmative charge. With the records re-
duced to only that necessary to present
the questions to the reviewing tribunal
it is not. in my opinion, an exaggeration
to say that. even, IL printed records We're
tho rule and they cost &c per 100 words
litigants in our appellate courts would be
subjected as d class to less expense than
that incurred under our present system
The other system of abstracts, in suf-
ficient number to supply all the justices
ha 81 nfpW1i1S in vbat