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Proceedings of the ... annual sessions of the Texas Bar Association, Volume 37 online

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but the general plan stated there is beyond the legislative power.

Mr. Potts : Yes; that is true. Still, it places it in the hands
of the Supreme Court to vary the number of the districts, and,
with the consent of the Legislature, the number of judges in the
several districts.

Mr. Smith : I get your point, but the proposition with me is,
do you think it is more desirable to expand the amendment as
suggested there, by some character of suggestion to the Legis-
lature, than to use the simple provision I mentioned?

Mr. Potts : If the Legislature had time to go into it and
work it our carefully, this would be a very proper measure to
present to them, with such changes, of course, as we might care
to make, for their consideration as a bill, but it is doubtful in
my mind whether it would get the consideration as a bill that it
ought to have.

Mr. McClendon: "Won't the same Legislature have to discuss
this measure as a constitutional amendment?

Mr. Potts : There is much force in that suggestion. I have
thought of the inconsistency of my position already. As a con-
stitutional amendment, of course, it will have to be considered
by the same Legislature.

Mr. Harrison: May I ask you a question before you take
your seat? Is it possible in your judgment to create a self-
functioning judiciary without a comprehensive constitutional
provision ?



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Texas Bar Association 195

Mr. Potts : It is very difficult for me to conceive of an ar-
rangement by which the courts would have the freedom that is
here suggested, without some such provision in the Constitu-
tion, guaranteeing them flexibility.

Mr. Barwise : May I ask a quesftion ? I am impressed, from
what I hear, that the system is very complete, but that is only
one question we have got to deal with, if we get any reform.
The other one is as to the probability of being able to get the
voters to vote favorably on any reform. Is it not probably true
as a matter of practical politics, if you were to put up this sys-
tem proposed by Mr. Dabney, that it would almost certainly re-
sult in the people voting down the constitutional amendment to
carry that, whereas, if you put up the simpler proposition of
one Supreme Court, to be constituted of not less than say five
members, the further details of which shall be worked out and
provided for by the Legislature, that the people, recognizing
^ that we are greatly delayed in matters of litigation, would vote
such a brief, general constitutional provision, and would be
afraid to vote the other, or would not do it? In other words, the
burden of proof is always greater on him who undertakes to
pass a constitutional amendment. The inclination of everybody
is to vote against a constitutional amendment. Now, I am in-
clined to think, for the benefit of whatever it might be worth, in
passing upon the one system suggested by Mr. Dabney, or the
other suggested by Mr. McClendon, that the simple one, that
merely proposes a constitutional amendment providing for one
Supreme Court of not less than a certain number of judges,
referring the details to the Legislature, would carry. I am fur-
ther inclined to think that one such as is proposed here, with
all these details, would meet the opposition not only of the laity
but of a great many lawyers, and I would like to know your
views about that.

Mr. Potts : I am inclined to think that the point is pretty
well taken, if I may express a personal opinion. It is un-
doubtedly true that one person will object to one detail, and an-
other person to another detail, and you multiply your opposi-
tion by the number of details you have to defend. And yet if
you can show that the system you have in mind is going to
effect a real reform, you gain strength that you might not get



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196 Proceedings op the

if you went to the people with a blind proposition, more or
less. They will sayj **Show your hand. What are. you going
to propose instead of it? You are coming to us with a loilind
alley proposition, and we would like to know what sort of sys-
tem you are going to propose in its stead.'' I am not sure, in
other words, whether the one argument or the other would pre-
vail.

The PREsn)ENT: Right in connection with your last state-
ment, what, in your study and your knowledge about the situa*
tion, is the difference between the way that people in Texas pre-
sent constitutional questions and referendum questions to the
people of this State, and the way the people of California or
these other Western States do it, in the matter of advising the
people? Or, to put the matter differently, in your observation
in this State, outside of the prohibition amendment or some
quasi-political amendment, do you recall any constitutional
amendment that has been submitted By the Legislature and has
ever been intelligently submitted to the people and urged be-
fore them?

Mr. Potts : That is one of out faults. We pass our amend-
ment resolution and then leave it. It takes an organized propa-
ganda behind any movement that does not provide for the pen-
sioning of the Confederate veterans, or something of that kind,
to get it through. And if I might refer to a remark made by
Judge Wear, it would be this, that we ought to tie this amend-
m.ent up to other amendments with great caution, if we want
this amendment to get through. The amendment he refers to
may be popular, but my study of the elections and constitutional
amendments that have been proposed in this State and other
States is that if you link several amendments up at one election,
and some one of them is particularly obnoxious to the people,
the meritorious measures will be pulled down by the voter on
account of the unpopularity of one of the measures. You must
be sure, therefore, it seems to me, that if you are going to be
tied up with any other amendments at all, that they be amend-
ments that are pretty sure to be adopted by the people, and
my judgment is that it will be bad to tie this amendment to the
prohibition amendment, that is, at the same election. It will
have nothing to do with it, and yet in the mind of a voter it



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Texas Bar Association 197

does have, and when you get him in the objective mood he is
going to vote down your amendment,, as well as the other.

The President: They are going to vote for the other two
amendments, however.

Mr. Potts : That is true, and it is only my suggestion that
it might be well to avoid tying it to political amendments.

Mr. McClendon : Here is my substitute.

The President : Here is what is offered as a substitute. This
is a substitute for the motion to adopt the Dabney report.

Mr. Moseley: I second the adoption of the substitute.

MEMO: Mr. McClendon's written resolution could not be
found when the meeting adjourned, although a thorough search
was made for it. He promised, on request, to send the reporter
a copy, and he has been written to for it.

After the further discussion shown herein, the McClendon
resolution was defeated.

Judge Hawkins : I want to make a suggestion with regard to
the form of the resolution. I have no desire at this time to
discuss the merits of the question, further than to say that I
realize it is of very grave importance, and we can hardly reach
a correct conclusion here on so many features of it, and that
what is known asi the ** principle of the bill" seems to address
itself to some minds in one way," and to some in another. I
apprehended when I made my interrogation of Mr; McClendon
a while ago if he endorsed the bill in principle, that he had in
mind principally the abolition of the Courts of Civil Appeals and
the increase in membership of the Supreme Court to fifteen.
Now, to my mind, the endorsement of the bill in principle is
divisible into a great many parts, because there are here what I
call principles, just as radical and just as far-reaching as what
he terms, or what I assume he terms, the principles of the bill,
and many features here that I would like to have the deliberate
judgment of the State Bar Association and its members on be-
fore they pass on those principles. The thought in my mind is
this.: that instead of spending further time in elaborating the
discussion as to these principles wrapped up in this bill, and
instead of endorsing the bill at all, that we have the chairman



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198 Proceedings op the

appoint a committee of five, who shall have general charge of
the matter, and to that conwnittee shall be referred this Dabney
bill and report, and any other suggestions or recommendations
that any member of the Association may care to submit to the
committee between now and the meeting of the Legislature, or
a meeting with the committee from time to time, and that that
committee shall digest the whole matter and work out and pre-
sent to the Legislature a bill for the amendment of the judiciary
article of the Constitution giving the committee, if you please,
full liberty in the premises, and not binding them by any recom-
mendations, and permitting what I am sure are valuable features
in many portions of the Dabney resolution to stand on their
merits, and leaving what I am sure are very unfortunate pro-
visions of the Dabney bill to be considered by the committee,
without our attempting to thrash them out while here and pass
judgment on them, and at the same time leaving the commit-
tee free to consider any and all of the various recommendations
which may be made by individual members, and to go back and
take your list of papers that have been read before the State Bar
Association during the last thirty years, a list of which will be
found in this book, taking the recommendations that hav€ been
made by the Bar Association at its annual meetings for thirty
years, surveying, if you please, the entire field, taking full time
for deliberation and for the proper consideration of a judiciary
amendment, presenting that to the Governor for his consideration,
and then to the Legislature for its consideration, and in the event
of the adoption by the Legislature of an amendment which meets
their approval, to take charge of the campaign of presenting
that to the people of Texas, because I am convinced that if ever
the Bar Association of Texas gets its mind down deliberately,
like we have all been trying to do here this morning, and adopt
a judiciary amendment, or a recommendation to the Legislature
for submission to the people, and the people are acquainted with
the merits of that bill, they will vote it overwhelmingly.

The President -. What assurance have you that a committee
of five will adopt a bill that will suit the Association?

Judge Hawkins : I think that with these papers a committee
can be depended upon to come nearer to working out a true
solution of the difficulty than this committee of the whole can



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Texas Bar Association 199

do here in the limited time at our disposal. I am perfectly con-
fident that that would result. If that is not to prevail, if the
house insists upon a vote on the adoption of the Dabney report
and bill, then I want to ast the indulgence of the body for a
few remarks on the merits of it, but I want to avoid that sort of
thing. I do not care to obtrude my views on the Association. I
have undertaken to frattie and have put in type an amendment
to the entire judiciary article, reflecting the best thought I have
been able to give the subject in twenty-five years as a practi-
tioner, and five years as a member of the court of last resort.
I am confident it has certain merits. This bill presented by
Brother Dabney carries valuable suggestions, which I would be
glad to see incorporated into the Constitution, some of which, if
I were drawing the bill now, my own tentative draft of that
judiciary article, I would embody into the draft, but there are
features in this bill, gentlemen, which are dangerous, and which
ought not to be endorsed by this Association.

Mr. Dabney : This is not presented now, but in the event that
this Association should adopt in principle the resolution sub-
mitted —

The President: Have you a resolution to present?

Mr. Dabney : Not to present, but a part of my argument, that
I will present later on. Only in the event this is adoptied in
principle, I move that the President of this Association appoint
a committee of five members to present the resolution adopted
in principle to the Legislature, and who shall not be appointed
unless they agree to support earnestly the resolution before the
Legislature; that this committee be authorized to make all
changes promoting the principles of the resolution adopted, and
to determine whether probate judges shall be elected or ap-
pointed, and shall always be lawyers; and also to provide that
motions for new trials shall be passed on by three judges when
practicable.

Now, if what Mr. McClendon proposes here, and Judge Haw-
kins proposes should prevail, it means indefinite postponement,
and nothing else. There will be nothing in this resolution as
representing the lawyers of this State, but simply something
brought forth by a committee. We cannot throw this thing
down to the Legislature like suggested by Mr. Barwise and Mr.



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200 Proceedings op the

Moseley and Mr. McClendon. That will ruin the whole thing.
We might just as well quit. We have taken ofif all restraints
upon political interference with the judiciary. Any court can
be created and any court can be abolished by the Legislature.
Mr. McClendon is mistaken in saying I criticised the Legisla-
ture. I was criticising the limitations under which they operate.
Every Representative and Senator would be under pressure from
his political supporters or friends, or what not, to create more
courts or abolish courts. The time of the Legisl/iture to an im-
mense extent would be taken up necessarily with intrigue and
log-rolling over pulling down and putting up and dislocating
the whole machinery. That I submit, gentlemen, is a hopeless
proposition. Now, Mr. Barwise says that some simple measure
submitting this to the Legislature, the De Bogory resolution, or
what not, would carry more probably before the people. I do
not think so. The people are sore. They are suspicious. They
are critical of all political pulls and holes, and largely justly so.
They vote down constitutional amendments, even when they are
meritorious, but this would have the support of the most influ-
ential body of the State of Texas, to-wit, the county officers.
They have more influence than any other men who hold public
office in the State of Texas. And it would have the support, I
believe, of the great body of the judiciary. I just want to say
that in reply to Mr. Barwise. Now, gentlemen, I did not intend
to say .anything more, but year after year we get together, and
we debate. Year after year, Mr. McClendon, who is a special
friend of mine, proposes to refer whatever is done, to another
committee. This thing has been iinder agitation in this State
since 1912, and I do not think that this Association should com-
mit itself in detail, but if we resolve and quit, like we have re-
solved so many times, I think it is perfectly, absolutely hopeless.
It is a thing that is futile, no use to be done in any respect,
unless we adopt something embodying positive principles. They
ought to be criticised, there ought to be committees to carry out
those principles, but unless we do stand for some principles, if
we do refer it again, as proposed by Judge Hawkins and Mr.
McClendon, we might as well say to ourselves: **We agree
that nothing should be done."

The President : You do not seem to understand Mr. McClen-
don 's proposition.



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Texas Bar Association 201

Mr. Dabney: He wants to leave it open for work before the
Legislature, to preserve the principle, how? He preserves the
principle, Mr. McClendon does, by referring it to a committee
to bring in a bill to establish a Supreme Court, and after that
is carried on the Greek kalends five years or ten years, to bring
at some future term of the Legislature a bill to ask the Legisla-
ture to embody this, so far and so long as they may please.
Mt. McClendon 's motion involves indefinite postponement. Your
committee will probably be dead, for they want to present this
as a legislative matter, after the people of Texas have opened
up the Constitution, so as to submit the Whole matter, except the
Suprieme Court, to the Legislature.

Mr. Barwise: What is your new proposition now?

The President : Do you offer this as a substitute ?

Mr. Dabney : No, sir.

.The President : The Chair will rule that the matter cannot
be presented unless it is presented as a substitute. We must
have something to go ahead on, or we will never get anywhere.

Mr. Dabney : You are entirely correct, in your ruling. I
offer it as a part of my argument why that substitute should not
be adopted, saying to the gentlemen here present, that if thej^
adopted this other matter in principle, then I would offer this
so as to afford the necessary flexibility in pushing this matter
before the Legislature.

Judge Hawkins : I move the adoption of this resolution :
* ** Resolved, that our President appoint a committee of five to
consider the Dabney bill and report, and any and all former
recommendations adopted by this Association, and any and all
papers heretofore presented to this Association on the subject,
and any and all suggestions which may be submitted to said
committee by any member of the Texas Bar Association, and to
prepare and present to the Governor and to the next Legisla-
ture a bill submitting to the people an amendment of the judic-
iary article of our State Constitution. Said committee shall also
be charged with the duty of aiding in the presentation of such
proposed amendment to the voters of the State. ' '

The President: Do you offer that as an amendment to the
substitute ?



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202 Proceedings op the

Judge Hawkins : I offer that as a substitute for the whole.

The President: Mr. McClendon's resolution has been sec-
onded, as I understand.

Mr. Kimbrough: I would like to hear the reading of the
McClendon resolution.

(The McClendon resolution was read.)

Mr. Kimbrough : Do you mean to carry forward a bill giving
effect to the principles of this resolution?

Mr. McClendon : I think that is what I intended.

Mr. Carrigan : I am in hearty accord with this constitutional
provision as presented by Brother Dabney, but I was struck
with the remarks of Mr. Wright, and I want Brother Dabney to
listen to my remarks. I was struck with his remarks, and had
it not been for the remarks of Mr. Wright I would not have
spoken to it, because I am in accord with it. You have gone
into particulars. There is one matter he called your attention
to, which I think was a very important one, and it illustrates the
point that I have in mind. I asked a question of Mr. Potts, and
he did not seem to catch the point. Now, this State should be
divided, if we have fifteen judges, into fifteen supreme judicial
districts, and one judge should be elected from each of those dis-
tricts. I give this as a matter that I think should be considered
by you, because in the first place, the lawyers and litigants, as
well as the citizens, in Northwest Texas would have no earthly
means of knowing, except by rank hearsay of the third and
fburth degree, the qualifications of a man from Beaumqnt, and
likewise a man over in the coast country, likewise a man from
East Texas and from West Texas and Central Texas. If you
would permit the judges to be elected from these supreme judicial
districts over the State, the people could better acquaint them-
selves with the qualifications of the judges and their capabilities,
both as to intellectual capacity and accomplishments, and as to
moral attainments. It will prevent the thickly settled portions
of the State from electing all the judges. In addition to that, it
will enable us to get men closer to the people. It will have an-
other effect, which I think is the best, appeals to me as the strong-
est. There is a condition of affairs that exists from the cross
timbers here to our east to New Mexico, and then south to the



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Texas Bar Association 203

Eio Grande, and that is the litigations arising in regard to school
lands. You take a man from Central Texas, and he knows about
as much about that as he does about the nebular hypothesis, and
his judgments and decrees are ludicrous, when it comes to their
practical enforcement. A man who lives in the western portion
of Texas, where the school lands are situated, and knows the
practical results of a decision, would render a decision that
would be practical, and if you had a man on the bench from that
section of the country, he would understand what it was about.
But let a man from another section of the State render a de-
cision, and sometimes you know what it is about, and sometimes
you do not. Sometimes it is practical, and sometimes it is not.
The same thing, of course, in reference to East Texas, where
they have litigations in regard to timber rights. What would a
man from West Texas know about timber rights? He would not
know as much as a billy goat. Again, if all the judges were
taken from Northwest Texas and placed on the Supreme Court,
what would they know about the rights of people who were en-
gaged in the rice and sugar industry ? What would they know
about matters that arise in reference to the coastal affairs of
Texas? Again, there are sections of this State where they are
engaged largely in irrigation, the dry belt. A man rendering a
decision in regard to irrigation, who was from East Texas, where
it rains every other week, would know absolutely nothing about
it. A man from Central Texas would not know what he was
talking about. He would not understand the lawyers and the
witnesses, and would not understand their terminology. The
samje thing applies in regard to the great cattle belt and the
great oil industry. It is true that the oil industry has extended
now so that it would be hard to get a man upon the Supreme
Bench who would not understand something about that industry,
but there are two or three lawyers present who have tried to
argue cases in the higher courts in regard to oil matters, and
I have had one Court of Civil Appeals, consisting of three
learned judges, tell me that they never before in their lives saw
an oil lease, and did not know what it was about. In order to
obviate that, I think there ought to be supreme judicial districts,
so that ypu could get men from all over the country, who have had
eiperience all over the country, and it will prevent the criti-
cism I heard a lawyer make one time in regard to a decision of



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204 Proceedings of the

one of OUT supreme judges about a matter that he did not know
anything about except from hearsay. The judge that wrote the
opinion was a very good fellow, but he knew nothing about what
he was writing about, and this lawyer said that that judge and
all Supreme Court judges ought to be required, after serving
one term on the appellate bench, to plow corn for at least four
years before going back on the bench again. I think that is a
practical thing, because we want to have rules of property laid
down that are practical rules, that the people can be governed
by, and that will prevent people from being checked in lawful
and legitimate enterprises. Decisions which will prevent legit-
imate trading and which stop the wheels of commerce are un-
just to the citizenship and unjust to this State and its develop-
ment. (Applause.)

Judge Wear : I move we adjourn until two o 'clock.
(The motion was seconded and carried.)



AFTERNOON SESSION— JULY 5, 1918.
The convention was called to order at two o'clock p. m.

The President: I declare the session open, and we will pro-
ceed with this debate.

Mr. Harrison: Mr. President: In view of the fact that a
considerable amount of detail business and some reports have to
be attended to, and the closing session will be crowded, and
knowing that I express the desire of everybody present in so
doing, I move that after we shall have heard from Dr. Pound
at length on the question now before the Association, that thirty
minutes additional be allowed for general debate, and then the
debate close and we vote.

Mr. Sanford : I second the motion.

The President: Shall that be divided equally between the
parties ?

Mr. Harrison : The presiding officer can adjust that.
The motion was unanimously adopted.



Online LibraryTexas Bar AssociationProceedings of the ... annual sessions of the Texas Bar Association, Volume 37 → online text (page 20 of 39)