USA > Indiana > Courts and lawyers of Indiana, Volume II > Part 12
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The Circuit court has always been the chief forum of liti- gation in Indiana. The Act of June 17, 1852, divided the state into ten circuits. Its jurisdiction is too well known to need statement here. Its jurisdiction, however, is defined by the General Assembly and not by the Constitution. Its officers are a judge, elected for six years, a prosecutor, elected for two years, and a clerk, elected for four years.
The sixty-three years of existence of these courts have sug- gested many criticisms. One of these is the manner of select- ing judges. This criticism has suggested a number of reme- dies. There are many lawyers who believe that judges should be appointed by the governor for life, subject only to impeach- ment. This idea, of course, comes directly from the English customs, adopted by the United States and many of the states. The appointive, life-tenure plan, they point out, has worked well there and in the seven or eight states which have fol- lowed that example. The basic reason, it is argued, is the necessity of separating the judges from the fear of hasty re- sentment by the voters. A much smaller number who favor life tenure favor the judicial recall. This, they claim, would answer the main objection to life tenure; that is, that life tenure will create an arbitrary power in the hands of the judiciary incompatible with free institutions and a free democ- racy. In Massachusetts, where judges hold during good be- havior, a vote of want of confidence by the State Bar Asso- ciation is tantamount to a decision against good behavior. Practically this never happens, as judges anticipate such
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action by the Bar Association and resign. Another reform favored by a large number of lawyers, and once at least en- dorsed by formal resolution of the Indiana State Bar Asso- ciation, is the selection of judges at an election at which no other officers are chosen.
While discussing the trial or Circuit Judge, it is in order to point out a criticism which finds its source in the lack of power of the Circuit Judge. This alleged defect likewise comes from a comparison of the Circuit Judge with the United States Dis- trict Judge. The United States judge has far more power than has the state judge. The latter is largely at the mercy of the jury as far as the verdict is concerned. The United States judge conducts criminal trials as they were conducted at the English Common Law, under which the jury was bound to follow the instruction of the judge in all matters of law, and which also permitted the judge to comment on and give his view on the evidence and what it proved. Under Lord Jeffreys and some other English judges this power was grossly abused. To avoid such results, many of our states, including Indiana, adopted provisions giving the jury the right to de- termine the law and the facts. Under this provision our Circuit Judges, after instructing the jury, must affirmatively direct the jury that it is the sole and exclusive judge of the law and the evidence.
"The fifth instruction requested by the state and given by the court was: 'The court instructs the jury that they are the judges of the law as well as the facts in this case, and, if they can each say upon their oath that they know the law better than the court itself, then they have the right to do so. But, before assuming so solemn a responsibility, they should be as- sured that they are not acting from caprice or prejudice, that they are not controlled by their will, or their wisdom, but from a deep and confident conviction that the court is wrong, and that they are right. Before saying this, upon their oath, it is their duty to reflect whether from their study and experi- ence they are better qualified to judge the law than the court. If, under all these circumstances, they are prepared to say that that the court is wrong in its exposition of the law, the Con- stitution and the statute has given them the right.' The Con-
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stitution of our state (section 64, Burns' Statutes 1908) pro- vides : 'In all criminal cases whatever, the jury shall have the right to determine the law and facts.' This section of the Constitution declares in the broadest and most imperative terms that in all criminal cases the jury shall have the right to determine the law as well as the facts. It is the duty of the court to instruct the jury as to the law of the case, and at the same time inform them that they are the judges of both the law and facts. Instructions in criminal cases are not to bind the conscience of the jurors, but to enlighten their judgment. The above instruction imposes a restriction upon the jurors not imposed by the Constitution, consequently said instruction is in conflict therewith, and erroneous, in that it takes from the jury their entire freedom as the judges of the law and the facts, and imposes upon them a restriction not contemplated by the Constitution, but attempts to nullify it." (99 N. E. 422.) Thus is the jury entirely freed from the control of the court both as to the law and the fact. This power extends so far as to give the jury the right to interpret the Constitu- tion so far as it may apply to the case at bar. Whether it would be better or not for the Circuit Judge to have more power is an open question. It is mentioned here merely as a criticism frequently heard.
Another criticism made on the Circuit court, which is really a criticism on the judge, is that its jurisdiction covers too wide a range. Other states have divided jurisdiction con- ferred upon our Circuit court among a number of courts. This condition has resulted of late years in a number of Supe- rior and Criminal courts of limited jurisdiction located in the more populous counties. This criticism, however, runs con- trary to all our traditions of a century. The unmistakable tendency is to consolidate rather than separate our jurisdic- tions. It was this tendency which, in 1816, killed the numer- ous local courts of the territory ; later, it killed the Probate courts ; still later, it killed the Common Pleas courts, and at present there are many lawyers who favor abolishing all the Superior and Criminal courts and returning their jurisdic- tions to the Circuit courts, whence they sprang. They would meet the difficulty by placing more men on the Circuit bench.
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Among those who would divide the business of the Circuit court there is little agreement. Some would divide along the lines between civil and criminal; others along the line between probate and the old Quarter Sessions, while still others would follow the lead made by the police courts by cutting out of the jurisdiction of the Circuit court cognizance of all petty crimes and misdemeanors.
Another criticism made against our judges is that under the present system the judge, whose circuit is often only a county, is not only personally well known by many persons, but that he is somewhat conversant with many of the diffi- culties which result in crime or law suits. It is recom- mended that the justices go on circuit and not hold court in the county where they live.
As noted above, the tendency to break up or separate the jurisdiction of the Circuit court leads occasionally to the es- tablishment of coordinate tribunals with special powers. One class of these courts is called the Superior court. A number of these have been created in the more populous counties. Each rests on a particular statute which defines its power and confers its jurisdiction. The following quotation from the law constituting the Grant and Delaware Superior court. approved March 1, 1909, will serve as an illustration: "Said court shall have jurisdiction in all civil actions, original and appellate, concurrent with the Circuit court of said county, in all matters of every character whatever of which said Circuit courts now have or may hereafter have jurisdiction, except probate matters and the settlement of decedents' estates." The purpose clearly is to relieve a congested court, but the new jurisdiction is entirely concurrent. The judge of the Superior court cannot, any more than the Circuit Judge, hope to become a specialist, such as a police or probate judge might become. The Circuit Judge must be equally a master in all fields of the law. Only two fields are eliminated for the Su- perior judge, the criminal and probate law. For this reason, many thoughtful lawyers are contending that it would be bet- ter to abolish the present Superior courts and increase the number of Circuit judges. Where there are two or more judges on the same circuit each could specialize in a certain
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line of cases. Such an arrangement would have the added advantage of doing away with the necessity of special judges.
By an Act of March 10, 1903, another inroad was made on the jurisdiction of the Circuit court. This act established a Juvenile court in Indianapolis. It is typical of this new kind of court. A regular judge is elected by the voters at the gen- eral election. The procedure is not radically different from that of the Circuit court. A probation officer, appointed by the judge of the Juvenile court, is required to appear at the trial as the friend of the delinquent. Children, convicted, are usually turned over to this probation officer for care and con- trol under the direction of the judge.
This court has "jurisdiction over all cases relating to chil- dren, including juvenile delinquents, truants, children peti- tioned for by boards of childrens' guardians and all other cases where the custody or legal punishment of children is in ques- tion, but such court shall not have probate jurisdiction." This jurisdiction is conferred in smaller counties on the Circuit court.
It is to be noted that this jurisdiction is carved out more scientifically than that of the Superior court. The jurisdic- tion is not concurrent, either, and hence not so liable to lead to confusion. It is a departure in American courts and so far has commended itself to popular opinion, though, like all innovations, it has incurred the hostile criticism of a large number of laymen and lawyers.
Another court whose jurisdiction is taken from the original field of the Circuit court is the Criminal court. The act of April 12, 1881, provided that this court should consist of a judge, elected by the voters for a term of four years. The other officers were the same as those of the Circuit court. In all its proceedings it was governed by the same laws as those governing the Circuit court. This Criminal court had "orig- inal exclusive jurisdiction with the county, of all crimes and misdemeanors, except where jurisdiction is by law conferred on justices of the peace, and such appellate jurisdiction in criminal cases as may by law belong to the Circuit court in the counties having no Criminal court."
This, of course, was an attempt to relieve the congested
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Circuit court. It is in effect the election of a second Circuit Judge to look after criminal cases. The Criminal court judge was, moreover, authorized to sit in cases where the regular Circuit Judge was for any reason ineligible, thus rendering him all the more an extra Circuit Judge. This act established Criminal courts in Marion, Allen and Vigo counties only. There seems at present no serious objection to this court, ex- cept the general criticism, stated above, that it would be sim- pler to elect more Circuit Judges and not divide the general jurisdiction of the Circuit court.
Yet another class of petty crimes and misdemeanors have been withdrawn from this general field and placed under the general jurisdiction of the county truancy boards. These offi- cers have been in direct relation with the schools and most of the offenses of which they take cognizance are absences from school and related delinquencies.
The Act of March 8, 1915, commonly known as the Indiana Workmen's Compensation Act, created a tribunal which was invested with some of the duties formerly performed by the Circuit court. This act is administered by an Industrial Board, of three members, appointed by the Governor, and on a salary of $4,000 per year. In general, this board has exclu- sive jurisdiction over all damage cases arising from industrial accidents. The reason for this tribunal is to be found in the excessive costs often accruing both to employer and employee in the prosecution of damage suits, and also from the growing sentiment that every industry should sustain its own losses, among which should be counted not only depreciation of equip- ment, but also losses consequent upon injury or death of em- ployees. In the new tribunal a procedure is laid down rad- ically different from that followed in the Circuit court in sim- ilar cases, and consists essentially in a plan by which the two parties may adjust their case without the assistance of any court or lawyer. The departure is too new to judge of its efficacy in our own state.
An act of February 28, 1905, had already created a Rail- road Commission, which, as amended by act of March 9, 1907, provided for the appointment by the governor of three men whose duty was "to supervise all railroad freight and passen-
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ger tariffs, and to adopt all necessary rules and regulations to govern car distribution and delivery, train service and accom- modations and demurrage rules and charges and for car serv- ice or the transfer or switching of cars from one railroad to another at junction points, or where entering the same city or town" and have jurisdiction over practically all other ques- tions of a civil nature to which the railroads were a party.
Four years later this commission was abolished and its powers transferred to the newly-created Public Utilities Com- mission. The jurisdiction of the new commission was wid- ened immensely so as to include all civil questions arising from the organization or conduct of public utilities companies. The reasons for the creation of this new tribunal and the con- sequent curtailment of the powers of the Circuit court are to be found in the necessity of greater dispatch in the settlement of these questions and in the growing distrust of the ability of the courts to handle this class of cases adequately. On the one hand, the public complained that courts were unduly in- fluenced by the corporations and, on the other hand, it was asserted that corporations could not get justice at the hands of juries. The commission is on trial and public opinion is divided as to its merit.
The net result of all these extra tribunals is not unlike that which prevailed during the decade preceding the constitutional convention of 1850. The unity and simplicity of the system are being sacrificed, largely to relieve the crowded dockets. There is no disposition on the part of the writer to compare the merits of the two general plans for relieving the congested courts. One plan is to multiply the jurisdictions ; the other is to multiply the judges. The main argument for the former plan is that it permits specialization and leads to expertness. The inain argument for the latter is that it is simpler, far more economical and more systematic, and in the end pre- serves intact the general body of the law. It will divide the profession of the law into groups of lawyers, each equipped to practice in a special court only.
Above the trial courts stands an Appellate court, whose essential duty is to review the work of the trial court and see that substantial justice has been done. In order that the Ap-
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pellate court may do its work intelligently, certain forms of procedure are laid down for the guidance of the trial court. The chief source of complaint against the Appellate court arises from the administration of these rules of procedure. The tendency of the court seems to be to stick too closely to the formal rules and thus become technical. An example of this criticism may be found in the act of September 19, 1881, and the amendment of 1911. These acts abolished all forms at common law and equity.
As pointed out above, another source of popular complaint against the appellate branch is its slowness of action. When the present Supreme court was provided for in the Constitu- tion of 1851 it was arranged so that the number of judges might be increased up to five. This, it was thought, together with the new officers, the reporter and clerk, would enable the court to keep its docket clear.
Long ago the court reached the point where its five judges were unable to take care of its work. At first a remedy was sought by appointing a Supreme Court Commission, composed of five members, one from each district. It seems that what happened was that each supreme judge had a deputy to help with the work of preparing decisions. The plan failed. It was an attempt to solve the difficulty of a crowded docket by multiplying the judges and preserving the jurisdiction.
In 1891, after the Constitution had been amended, the Ap- pellate court was created and given a special jurisdiction carved out of the original field allotted by the Constitution to the Supreme court. This, just as plainly, is an attempt to remedy a congested court by dividing the jurisdiction. The inevitable result has followed. The boundary line between the jurisdictions is a zone of trouble and uncertainty. The decisions of the Appellate court are accepted with hesitation and lawyers seek by one method or another to have their causes brought for review to the Supreme court. In many cases it results in two appeals, the first to the Appellate court, and the second to the Supreme court. As an illustration of this we cite the famous case of Pittsburg, etc., R. Co. v. Peck (45 Ind. App. 712.) From a judgment of $4,000 rendered by the Cass Circuit court, the railroad company appealed to the
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Appellate court, which court, on February 19, 1909, trans- ferred it to the Supreme court on the ground that a constitu- tional question was involved, namely, whether section I of the Employers' Liability Act did not violate the company's right under the Fourteenth Amendment (43 Ind. App. 316.) On March 9, 1909, the Supreme court transferred it back to the Appellate court on the ground that the Supreme court had already held said section valid and that, therefore, no consti- tutional question was raised (172 Ind. 19). This case had already been reversed by the Supreme court (172 Ind. 537). The Appellate court, on June 4, 1909, retransferred the appeal to the Supreme court, on the ground that the statute defining the jurisdiction of that court expressly prohibited it from de- ciding any case in which a constitutional question was raised, and that its decision on the question of jurisdiction was final (44 Ind. App. 62.) The Supreme court, July 1, 1909, in a lengthy opinion, retransferred the case again to the Appellate court on the ground that its decision originally transferring it to the Appellate court must be considered as final, and that, although a constitutional question was involved, the Supreme court's decision originally transferring the case must be con- sidered as an elimination of all constitutional questions from the case. Montgomery, C. J., however, held that the Supreme court had made a mistake in the original transfer and that the Supreme court had exclusive jurisdiction in all cases involving a constitutional question, however devoid of merit the question might be (172 Ind. 562). The Appellate court, January 7, 1910, retransferred the appeal to the Supreme court on the ground that four judges of the Appellate court could not agree on a decision. The appellee having died, this administration compromised the case and the judgment was reversed upon a confession of error (45 Ind. App. 712.)
In spite of this attitude by many lawyers, the court seems to be holding its own in public opinion and will probably not be abolished until the whole judicial system of the state is reorganized in a constitutional convention.
The other features of the judicial system remain very much as they have been from time immemorial. "Twelve good men and true" still hear the evidence and declare the verdict, in
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criminal cases, being judges of both the law and the evidence. They are still selected with the same scrupulous diligence as to the ignorance of the case as when Mark Twain wrote his satire on the Nevada jury. The same grand jury as a century ago, except for slight changes in numbers, holds the semi- annual inquest on the county and finds indictments against the evil-doers. The same defect with regard to prosecuting at- torneys exists as did a century ago. The office has not been attractive to the best attorneys, although, of course, many good lawyers have served in the capacity of prosecutor. The office seems to be regarded as the special province of young attorneys, and is rarely held for more than two terms in suc- cession. This suggests that party politics has some influence on the election. The prosecuting attorney is paid $500 per year as a salary and supplements this by fees depending largely on his success at the bar.
This feature of the office is open to the same objection as the fee system in the justices' courts. The corresponding of- ficer in the United States courts, following the English cus- tom, is appointed for a term of four years and placed on a salary which has no relation to the work done or suits won. This system has not found favor in Indiana largely because it is thought the present system is cheaper to the taxpayer.
Viewing the system as a whole, one may safely say that the administrative department of the government is making deep inroads on the former province of the courts. These inroads come from pressure in at least three directions. The industrial world is demanding greater expedition in the settle- ments of its disputes. Bureaus and commissions are taking over in large measure the former work of the courts along this line. Railroads, municipal utilities, industrial accidents, and insurance in some states, have been given over to commis- sions or special tribunals.
From another direction social forces are asking and re- ceiving control over matters formerly left exclusively to the courts. Divorce courts, truancy boards, juvenile courts, pro- bation officers, orphans' agencies, women's aid societies, and even the Christian associations are sharing this work. In all these cases there is more expedition and more regard for the
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social results of the action. Women and children are gener- ally being withdrawn from the power of the courts.
From the direction of charity, benevolence and education, the so-called saving forces of society, there is likewise pressure on the field of activity of the courts. Defectives, children and orphans are by statute turned over to these institutions for purposes of care, protection and training. So deep are these inroads becoming, that many lawyers look with some appre- hension on the future of the courts. On the other hand, it is admitted by all that there is much useless and purposeless liti- gation in the fields just enumerated. It is conceded that so- ciety would not be the loser by the prevention of all such law- suits, just as it is the gainer by the prevention of all diseases possible.
CIVIL AND CRIMINAL STATISTICS OF INDIANA, 1911-1915.
The work done by the Indiana county courts is strikingly set forth in the tables prepared by the bureau of statistics each year. The law requires (Burns' Revised Statutes of 1898, sec- tions 9342-9344) the bureau "to collect, compile, systematize, publish, print and report biennially with other reports" all statistics relating to arrests and convictions in the county courts of the state. The act providing for the collection of this data also provides that the county clerk or other officers, whose duty it is to collect this material, shall make a report to the chief of the bureau of statistics not later than February 15 of each year.
The blank which is sent out lists the following crimes on which reports are to be made: Adultery, assault, assault and battery, carrying concealed weapons, cruelty, disturbing the peace, drunkenness, gambling or gaming house, loitering, petit larceny, prostitution and association, provoke, riot, speed law violations, trespass, vagrancy, violation of fish and game laws, violation of liquor laws, violation of pure food laws, and finally "all other misdemeanors." The blank also requires a state- ment as to the disposition of each of these specified misde- meanors.
Another set of statistics shows a resume of all civil and
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criminal actions together with their disposition. The follow- ing tables have been prepared from the records in the bureau of statistics and exhibit in concise manner the amount of business which was handled by the county courts for the past five years.
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