Iowa State Bar Association.

Annual proceedings, Volumes 16-20 online

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years ago. Too much time is lost in Court, chiefiy because the
Judges are too accommodating to exercise their power of short-
ening examinations and arguments on law questions. Fifty
Judges of the ability of some of the more efiScient ones now on the
Bench could do the whole work of the Courts in our ninety-nine
counties, and the saving on the salaries of those who could be
dispensed with would pay a large part of the proposed increase
for the rest.

The term of oflSce should be lengthened to twelve or fourteen
years, by a constitutional amendment, so that the Judge would
not have to be a politician or contend with politicians every few
years who want his place for themselves or their friends. The
Judges should be appointed instead of elected, although this is
not so important as the matters of salary and tenure of oflSce.

An adequate salary and a term of office of sufficient length
would give us Courts whose records would be comparatively free

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178 TWENTIETH ANNUAL MEETING

from error and whose judgments would be respected, and defeat-
ed parties would not appeal every ease as a matter of course.
There should be an effort made in this direction at the next ses-
sion of the Legislature, for the advantages of the change would
be worth far more than the cost, and there would then be no
necessity for increasing the number of Supreme Court Judges or
establishing intermediate Courts of appeal.

Besides this, the next sesision of the Legislature ought to
promptly repeal the vicious judicial primary law enacted in
1913. It was passed without any public demand for it. There
was no discussion of it among the members of the Bar or in the
newspapers. The proposition was not heard of by most of them
until it had become a law. There had been no complaint made
against the system of nomination by judicial conventions pro-
vided for in the general primary law. When the original pri-
mary law was adopted it was generally conceded that the nom-
ination of Judges should not be left to the lottery and guess-work
of a primary election. If it is desired to retain the non-partisan
feature, provide for non-partisan conventions.

This new law permits the elector to vote for twice as many
candidates as there are places to be filled, and the ballots used at
the recent election directed him to vote for that number. Prac-
tically all the voters naturally thought that they had to comply
with this direction, and so when they voted for the candidate of
their choice they also voted for his competitor and put him in
just as good a position as the one preferred by the voter. This
could be changed by amendment, but even then it would be a
bad law. It is a statute for the encouragement and assistance of
incompetent candidates for the Bench, as is well proved by many
of the nominations made at the primary three weeks ago. Men
who would not have dreamed of presenting themselves to any
judicial convention we ever had, and asking for a nomination,
have pushed themselves in and obtained nominations under this
law. There is great danger that many of them will be elected.
The law enables the most unfit and the most brazen to lay unholy
hands on the judicial ermine, and it threatens to degrade our
Courts.

It may not be advisable to adopt resolutions on the subject,



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IOWA STATE BAR ASSOCIATION 179

but I believe the members of this Association could not do a
better thing than to work for the repeal of the judicial primary
law, the substantial increase of the salaries of the Judges, and an
amendment to the Constitution materially lengthening their term
of office.

An adjournment was then taken until 1 :30 P. M.



Friday Afternoon Session

1:30 O'CLOCK, p. M.

The Prestoent: I understand the Executive Committee is
ready to make a report, which will be presented by Senator J. L.
Carney.

REPORT OP liXECVTIVE COMMITTEE

The members present were C. M. Dutcher, W. L. Harding,
P. E. Farwell, J. C. Pryor, Jr., J. 0. Malcolm, R. B. Alberson,
C. W. Reed, H. J. Wilson, J. L. Carney, and Secretary H. C.
Horack.

Upon motion duly made the President was authorized to ap-
point a member of the Executive Committee in the Eighth
District.

The following cities presented invitations to the Association
for the next meeting : Council Bluffs, Clinton, and Fort Dodge.

Upon motion duly made Fort Dodge was selected as the place
for holding the twenty-first Annual Meeting, the date for such
meeting being fixed for the last Thursday and Friday in June,
June 24 and 25, 1915.

Upon motion duly made, the President, Secretary, and the
member of the Executive Committee from the Tenth District
were appointed a sub-committee, with power to act with reference
to all plans and arrangements for the next meeting.

Upon motion duly made the report of the Executive Committee
was adopted.

The Prestoent: I think the Committee on Resolutions is
ready to report. This report will be presented by Judge C. W.
Mullan of Waterloo.



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180 TWENTIETH ANNUAL MEETING

EEPOBT OP COMMITTEE ON BBS0LUTI0N8

Your Committee on Resolutions beg leave to report and recom-
mend the adoption of the following resolutions :

Resolved, That a vote of thanks be extended to Professor Boseoe
Pound for the able, eloquent, timely, and instructive address
delivered by him before this Association.

Be it further resolved, That a vote of thanks be extended to the
local Bar of Des Moines County, the Burlington Golf and
Country Club, the Elks Club, the Commercial Club, the Y. M.
C. A., the Moose Lodge, and other clubs of the city of Burlington,
for the very kind and courteous treatment of the members of this
Association and the delightful entertainment given to them as
guests of the city.

Be it further resolved. That a general vote of thanks be ex-
tended to the persons who have read papers and responded to
toasts during the meeting of the Association, and in this connec-
tion, the Association desires to express its high appreciation of
the able character of the papers and responses and the entertain-
ment thereby given to the members of the Association.
Respectfully submitted,

Chas. W. Mullan,
M. J. Wade,
H. E. Deemer,
J. L. Carney,
W. R. Lewis,

Committee.

Judge Mullan : I move the adoption of the report of the com-
mittee as read.

The motion was duly seconded and carried.

The Prestoent : The Chair will appoint the three delegates to
the American Bar Association which will meet in Washington
City on October 20, 21, and 22, as follows: Mr. Charles E.
Pickett, of Waterloo; M. W. Bailey, of Washington; and Mr.
C. M. Dutcher, of Iowa City.

I am not sure whether there are any unfinished matters of
business carried over from this morning or not. Some sugges-
tions have been prepared on the question of the amendment of



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IOWA STATE BAR ASSOCIATION 181

the statute for the selection of jurors. Mr. Wm. McNett of
Ottmnwa will present this matter.

THE SELECTION OP JUBOBS

Mr. President and Oentlemen of the Iowa State Bar Asso-
ciation: My subject is put down in the form of an address.
The truth of it is, I have no address, but I have some sug-
gestions to make in support of a proposition to recommend to
the next General Assembly of this State the enactment of a
measure providing for a different method of selecting the lists of
names from which to draw the panel of the petit and grand
jurors, and at the suggestion of others, perhaps, rather than my
own, I am going to recommend that this law should be applicable
to all counties in the State having cities of a population of ten
thousand and upwards. The proposition (No. 1), as stated in
the report of the Committee on Law Reform, is as follows :

ShaU the Association reeommend to the next General Assembly of Iowa,
the enactment of a statute modifying the present system of selecting names
for petit and grand juries, and providing for a Jury Commission to select
the names from which the panels for both the petit and grand juries shaU
be drawnf

I regret that we as lawyers haven't paid more attention than
we have to the quality of our jurors. We complain about it, but
have taken no steps whatever to elevate the standard, or be more
careful in the selection of the names from which our jury lists
are drawn. As you are aware, the present law imposes the duty
upon the judges of election to select from the poll lists the names,
the statute defining the proportion according to the population,
to be put on the jury list, and afterwards the petit and grand
jurors are drawn from these lists. So far as the agricultural
counties, as I shall call them, are concerned, or counties contain-
ing county seats of from three to five thousand, or six or seven
thousand, perhaps, there is no ground for any special complaint
of the character and quality of the jurors which we have for the
last ten or twelve years been getting in Iowa.

Now, there are several reasons for this situation, f)erhaps one
of which is, that these lists are never selected by the judges of
election until after they have canvassed the vote. They often get



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182 TWENTIETH ANNUAL MEETING

through late at night or the next day, having been up all night,
and when everything is done, every road supervisor' counted in,
the most important duty the judges of election have to perform
is performed in an inefScient and inadequate manner, and the
result has been, that our jurors, upon whose verdicts and de-
cisions rest the liberties and properties of the citizen, do not
measure up to the standard which the qualifications of a man who
has your liberty, your property or my property to decide upon
should possess.

I have practiced law for forty-four years in the State. When
I first came here, in our county of Wapello, two-thirds, if not
three-fourths, of the jury was made up at that time of men who
were drawn from the farms, of that sturdy hard-headed char-
acter which calls out men who have strength and courage, who
left their homes in the East, — Ohio, Indiana, Pennsylvania, and
New York, to come into this western country and build up the
country as they did — strong, stalwart men, perhaps not greatly
educated, but with an abundance of good common horse sense.
And whatever litigation there was, was comparatively simple to
what our litigation is today. Much of it related to farm contro-
versies and suits involving purely commercial matters. But
times have changed, and with it has come a vast change in com-
mercial and social relations which have come over the country
within the last ten, fifteen, or twenty years, so that now jurors
are brought into the box to listen to and decide most complicated
controversies; controversies involving large sums of money; con-
troversies involving intricate scientific questions, difScult pieces
of machinery, expert testimony, which only the trained mind,
only some one who has been in the habit of considering larger
measures and facts in the world, can fathom.

You will find, for instance, a majority of the old class of
jurors even now in Van Buren County, to be personal. I happen
to know that there the old condition of things, which once existed
largely in the counties of the State still exists, the same as when
I first came. The juries consist largely of wealthy farmers.

But take the larger cities, like Des Moines, and I have com-
municated with all the cities of the State, and there is great com-
plaint that jurors do not measure up to the standard they ought



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IOWA STATE BAR ASSOCIATION 183

to measure up to. Our law, unfortunately, makes the Judge
practically a presiding oflScer, to regulate the matter of the intro-
duction of the testimony and instructions to the jury; a mere
presiding officer.

I have investigated this question in different parts of the
country and have gathered up such information as I could as
to how jurors are selected, and to my surprise, I have found
that quite a lai^e number of States have abandoned the
idea of allowing the supervisors, or those constituting the officers
of a town meeting, or mayors, to draw the jurors and they have
taken away from them entirely, that power because it was at
times abused by favoring men who desire to be on the jury.

I find, wherever the jury commission has been adopted, it has
given eminent satisfaction. Take, for instance, the great city of
New York — and we become familiar with the great leading
cases tried there, either of a criminal or other character. The
very greatest care, in the city of New York, is taken by a com-
mission, paid for the purpose of selecting jury lists, from the
best and most intelligent men of all walks of life, and the result
is that the administration of justice in the city of New York by
juries is in a certain sense the most intelligent and most satis-
factory of any city in the Union. Take it in the city of Chicago,
we hear about jury fixing. I saw in a paper yesterday something
about a couple of men being arrested. But it is a rare thing in
the city of Chicago. They have a commission there and the re-
sults are eminentiy satisfactory, I am told by lawyers, so far as
the quality and character of their juries is concerned.

There is another reason why this whole subject should be taken
out of the domain of political influence, and that is, because the
politician wants to pay some political debt or something of that
sort In Chicago busy men are compelled to sit upon juries.
A man cannot say there that he is engaged in such and such a
business and then get off. Of course if he has sickness in the
family, the Judge excuses him. Otherwise the Judge says, **I
see no reason why you cannot sit for two or three weeks."

What is our situation? The strongest men do not want to sit
on the jury. He goes to the Judge and says that he wants to get
off, that his farm needs him ; another man has his excuse, and so



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184 TWENTIETH ANNUAL MEETING

on, and after the jury is selected from this list, the strongest and
best men who ought to be required to sit on the jury are largely
excused. This seems to be one of the places, and one of the op-
portunities and one of the cases where the laymen have a right
to talk back to the Judges, and to a certain extent the Judges do
more excusing than they ought to in the interest of justice.

I find that in 1909 the manner of selecting the jury list in New
Hampshire became practically a public scandal, and a commis-
sion was appointed to ascertain how other States, eminent men,
lawyers, and Judges regarded the question of the selection of
lists to make up their juries. I have a pamphlet in my pocket
setting out their report very fully, and without exception com-
mendation is given to the juiy comimissions. In other words,
where the commissioners have been selected by the Judges, I find
in every instance they are well commended. No man ought to be
on a jury commission who holds any official position whatever.
He shouldn't be a i)olitician.

Mr. Small, our very efficient and obliging Librarian, has looked
up some information for me concerning this matter. For in-
stance, Alabama, Connecticut, Delaware, Gteoi^a, and Illinois
(net all over Illinois but in the lai^er cities), Indiana, Kansas,
Kentucky, Missouri, New Jersey, New York, Ohio — and among
the very best commissions is that of Ohio — , Pennsylvania, South
Carolina, Tennessee, Texas, Utah, West Virginia, and Wis-
consin, all have commissions, and that policy has been grow-
ing and coming about within the last ten or fifteen years. Legal
controversies have been growing in magnitude and complexity.
The advance of civilization, the great march of the age, and all
these things tend to make the administration of justice more and
more important, and the jury is the tribunal which has the
largest influence over the destinies of men and the liberties of
men of any branch of the judicial system.

Let me say this, gentlemen of the Association, that there is no
more important matter today that could be presented to the
Legislature in respect to the administration of justice than the
selection of a higher grade of both petit and grand juries.
I had this matter up with Justice Deemer two or three years
ago and we examined the question at that time and we got



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IOWA STATE BAR ASSOCIATION 185

Senator Saunders to introduce a bill, but it was introduced so
late that we did not get action upon it. I think the same thing
was true with the last Legislature. I hope I have interested you
on this question and that you will examine it.

I now move that the President of this Association appoint a
committee of three or five, as may seem to him best, to formulate
and draft a bill to present to the next Legislature for the purpose
of providing for a jury commission to select the jury lists from
which the petit and grand juries shall be drawn in counties hav-
ing cities in them of ten thousand population and upwards.

The motion was duly seconded and carried.

Me. McNbtt: Shall the remainder of this report of the Law
Eef orm Committee be presented now t

The PBEsmENT : We will proceed with that report which will
be presented by the chairman of the committee, Mr. Wm. McNett
of Ottumwa. The Committee on Law Reform has not presented
any report recommending any changes in the statutes, but does
present some seven different subjects for consideration and dis-
cussion.

BEPOBT OF COMMITTEE ON LAW BEFOBM

Your Committee on Law Reform submits the following report
for the consideration of the Association.

The committee has not met, nor has there been a full expression
of views by correspondence as to propositions to be submitted to
the Association. However, out of the communications which have
been had between the chairman and the balance of the committee,
it was thought best not to put the propositions in the form of
direct recommendations, but rather in the interrogatory form,
leaving to the members of the Association and of the Committee,
to take such position in respect to the propositions thus submit-
ted, as may be seen best, when the Association meets, and the
matter is under consideration.

We therefore submit for the consideration and discussion of
the Association, and without recommendation, the following
propositions in interrogatory form.



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186 TWENTIETH ANNUAL MEETING

1.

Shall the Association recommend to the next General As-
sembly of Iowa, the enactment of a statute modifying the present
system of selecting names for petit and grand juries, and pro-
viding for a Jury Commission to select the names from which the
panels for both the petit and grand juries shall be drawn!

2.

Shall the Association recommend to the next General Assembly
of Iowa, the repeal of Chapter 289 of the 35th General Assembly
in respect to the matter of jury instructions ?

3.
Shall the Association recommend to the next General Assembly
of Iowa, the enactment of some measure providing for the fixing
or regulation of counsel fees, in personal injury eases, where such
fees are to be contingent upon the result?

4.

Shall the Association recommend to the next General Assembly
of Iowa, the enactment of a statute providing that the interest of
a distributee in an estate shall be fixed and established by a final
decreet

5.

Shall the Ajssociation recommend to the next General Assembly
of Iowa, the enactment of a statute changing the present legal
method for the nomination of Supreme and District Judges, and
providing for an increase in the tenure of office ?

6.

Shall the Association recommend to the next General Assembly
of Iowa, a further amendment of Section 4623 of the Code, in
relation to books of account as evidence, to the end that the same
may be made to conform more nearly to the modem and im-
proved methods of bookkeeping?

7.

Shall the Association recommend to the next General Assembly

of Iowa, the enactment of some measure pertaining to divorce

cases, where no appearance is made by or for the defendant,

whereby an inquiry in respect to the merits of the plaintiff's



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IOWA STATE BAR ASSOCIATION 187

claim may be judicially made, to the end that loose and easy di-
vorces, and those without merit, may be prevented, or at least
minimized f

Wm. McNett, Chairman,

M. J. Wade,

B. M. Haines,

H. I. Sawyer,

George Cosson,

c. w. mulijin,

P. P. Paville.

Mr. McNett : As the President has stated, and as stated in the
report itself, the committee was unable to meet, but I as chairman
corresponded with all the members and had some expression of
their views upon certain matters, and these propositions are pre-
sented in an interrogatory form, so that any member of the com-
mittee would be at liberty to support or oppose, as he chooses,
just as any other member of the Association might do. We have
already disposed of section 1. Section 2 is this:

Shall the Association recommend to the next General Aseembly of Iowa,
the repeal of Chapter 289 of the Thirty-fifth General Assemblj in respect to
the matter of jury instructions t

I will say, gentlemen, that particular proposition was recom-
mended to be presented to the Bar Association by the action of
the Association last year. I do not know what your experience
has been in dealing with that proposition. I like the old way very
much better than the new.

I move this recommendation be presented to the Legislature.

The motion was duly seconded.

Judge Henry Silwold : I cannot agree with the mover of this
motion, because I do think the statute does accomplish something
that is needed in this State. I find that the law does accomplish,
in a measure, the purpose for which it was enacted. It is an
assistance to the Judge and a material assistance in trying a case
and preparing his instructions for the jury. Under the old law
counsel on both sides are required to ask, or submit their request
for instructions following the discussion of the attorneys to the
jury at a time when the Judge must have prepared his instruc-



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188 TWENTIETH ANNUAL MEETING

tions to the jnry. This statute requires instructions to be sub-
mitted before the argument and this is of material assistance to
the Judge, and if they are required, as the statute does now, to
make their objections to the instructions, in writing, those ob-
jections are to be considered and re-considered by the Judge, and
I think in going over the instructions the second time, verifying
them, to see if he has not committed an error, and if error is
actually pointed out, he can avoid it, so that the case wiU not
have to go to the Supreme Court for consideration. I hope that
the statute will stand as it is.

Mr. J. P. Stake : I agree with the speaker in one respect, and
with the committee in another, that instructions asked should be
submitted before the arguments begin is all right. That counsel
should be required to go over the instructions presented by the
Court, in the few minutes time which is given us, and immedi-
ately before they are submitted to the jury and for counsel to
digest aU that is contained in these instructions on both sides,
and to suggest to the Court wherein error has been committed,
is piling up too much work on the lawyers for a fifteen minutes'
job. It is all right, so far as that is concerned, to ask a lawyer
to do it, but to say to him, if you don't find in fifteen minutes
any error, you are cut off for the future, and that he must almost
perjure himself to embody it in a motion for a new trial, I be-
lieve that part of the statute should be repealed, in so far as the
lawyer is given fifteen minutes' time to go over the instructions.

Mb. B. J. Bannister: It seems to me Mr. Starr is mistaken
when he says that if a lawyer does not see all the objections that
he has to perjure himself to get it in a motion for a new trial. I
think I would be entitled to be heard in a nisi prius or the Su-
preme Court. It seems to me the statute is very liberal in that
respect, and the law makers framed it so that the Judges would
have to take the lawyer's word, so far as overlooking objections
to instructions is concerned.

It seems to me, we owe, as lawyers, some duty to the litigating
public, and one of these is to settle litigation without too many
mistrials, and in so doing I believe the nisi prius Judges are
fairly entitled to the honest view of the lawyers on either side as



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IOWA STATE BAR ASSOCIATION 189

to the law applicable to the case. A lawyer comes to Court with



Online LibraryIowa State Bar AssociationAnnual proceedings, Volumes 16-20 → online text (page 17 of 56)