It is not a backward step, but a progressive one-one placing this Association in line with the thought of the leading lawvers of the United States and, in my judgment. it is the solution that in the end must come. We are simply frittering away our time and nibbling at straws to recommend this thing and that thing to the Missouri Legislature. I believe the Supreme Court should be given the power to prescribe the rules of procedure, and I believe that the Legislature will favor such a bill, and I have not the slightest doubt that the court would call to its aid the leading lawyers of the State, and from time to time remedy the defects in our code, as the necessity may arise.

Why should we not adopt that method, gentlemen? In the first place, it is flexible; secondly, it places us in line with the American Bar Association and with the Bar Associations of number of States of this Union. It places us in line to realize what I conceive to be the ideal in procedure; a procedure that will be uniform throughout the country. After the Supreme Court of the United States shall have prescribed rules under the authority of an Act of Congress, recommended by the American Bar Association, as they have already done in equity cases, then the different States of the Union can fall in line, and, so far as may be, adopt uniform rules of procedure, modifying it, of course, to meet the necessities of each State, so that a lawyer in one State when he is required to go to another State to appear before a court in that State will appear with some knowledge and understanding of the rules of procedure of that State, and not need to employ an expert in pleading and practice to assist him.

JUDGE HARRIS: Mr. Chairman, I move the approval of the bill as reported here and which received the endorsement of this Association at its meeting in Kansas City.

(Cries of "Second the motion!")

MR. LAMAR: Now Mr. President, I desire to move as a substitute for that motion, that this Association go on record as recommending to the Missouri Legislature the passage of a bill giving to the Supreme Court of this State the power and authority to prescribe and promulgate rules for the procedure in courts of record in this State. (Cries of "Second the motion!") JUDGE HARRIS: May I be permitted to say a word or two in reference to this matter?

THE CHAIRMAN: Judge Harris. JUDGE HARRIS: I trust in the first place. the matter will be thoroughly discussed, because it is too important to be passed over with small consideration. I protested against the consideration of this very proposition in the closing hours of the Association last year, because there were only some fifteen or twenty people present, and I did not believe it was right to discuss, or rather to determine, the matter, with so small a representation from the Bar of the State.

Gentlemen, it occurs to me that this proposition is impracticable in the State of Missouri, for two or three reasons. The first of these reasons is this: Our Supreme Court is already, right now, between two and three years behind with its work. They are not in a position to give any time to the matter, the time essential to do it right; and I believe that we should devise some system of procedure in our appellate practice that will enable our appellate courts to clear their dockets and catch up with their work before we place any additional burden upon them.

In the second place, I do not agree with my Brother Lamar in the proposition that courts are more flexible and more likely to respond to any real public demand for reformation than is the Legislature. Now, it has been asserted time and again that the reform procedure in equity cases promulgated by the United States Supreme Court is illustrative of what our appellate courts may do and can do if left to themselves: but I want to call your attention to the fact that the Supreme Court of the United States was eighty years in doing this; and they acted then only in response to a strong and insistent demand on the part of the people. And I do say that Congress would not have been as slow about it as was the Supreme Court.

Gentlemen, I do not believe it is practicable for another reason, and that is this: That our procedural law in this State, at least, is so interwoven and intermixed with our substantive law that such a measure as this would lead to interminable conflict and litigation in the courts. It is proposed by this proposition, as I understand it, to have the Supreme Court not only regulate the practice in its own court and the courts of appeal, but to regulate the practice in the Probate Court, in the County Court, in the justice of the peace court, in all the courts of the State.

Now, gentlemen, it seems to me that the proper thing for us to do now is this: We have approved this bill which I have just submitted once, we have approved it twice, we have amended it, we have changed it in some parts. It now represents the consensus of opinion as to the rules that ought to be enacted in reference to these particular matters. Let's put it through the Legislature if we can. Then, when the proper

time comes, if the Legislature endorses the proposition to put into the hands of the Supreme Court this great power, there is nothing to prevent that court then from adopting these sections of the statutes as a part of the court rules. In this way we can indicate to the Supreme Court the wishes of the Bar with reference to these particular matters.

It has been suggested by Mr. Lamar that if this power is given to the Supreme Court they will consult the leading lawyers of the State. Well, they ought to, and they certainly ought to pay attention to the wishes of an Association like this, composed, as it is supposed to be, of a majority of the lawyers in the State; but-I am speaking kindly, gentlemen, but I am speaking the facts-if the Supreme Court doesn't move faster in such a matter as this, if the power is given them, than they have moved in the amendment of their own rules, which individual members of the court, if you will ask them, will tell you ought to be amended, we will not get action any quicker than we could have obtained from the Legislature; and perhaps not so quickly.

MR. JOHN M. ATKINSON: Mr. President and gentlemen of the Bar Association, St. Louis: Hitherto I have been in favor of code revision, but my views have undergone a change.

What has been the history of the other States on this question? New Jersey wrestled with this question until she passed a Short Practice Act in 1910 or 1911, a simple little act of thirty-one or thirty-two sections; and with that act the Bar Committee that prepared the act wrote and drafted a set of rules for the Appellate Court to follow until they prescribed their rules in lieu of the ones adopted by the Legislature. I wrote the Clerk of the Appellate Court of New Jersey a year and a half to two years ago and I made a study of the whole subject. I found the Appellate Court of New Jersey had made only

one or two amendments to the rules adopted by the Legislature, which had been prepared by the New Jersey Bar Association of that State.

The State of New York appointed a commission that made a thorough investigation of the subject, composed of eight of the ablest lawyers in the State of New York; they published four volumes upon the subject, that compared the rules of the English practice act, the equity rules in the United States Supreme Court, the New Jersey rules, the rules of, possibly, Connecticut; and that commission, after one of the most thorough and painstaking investigations that has been made by an able commission of lawyers in the United States, reached the conclusion that a code composed of more than a thousand sections, like that of New York, and being constantly added to and changed, was confusing to the Bar of that State, and they recommended a short practice act of some seventytwo sections.

Now, I say that we do not move forward when we recommend this code revision. I have been in sympathy with Mr. Manley O. Hudson all the time in this fight; I even had the temerity to prepare a bill and I sent it to the Legislature at the last session; I think I submitted a copy of it to my friend Mr. Lehmann and Mr. Judson; I merely had it introduced for the purpose of education. You will find it among the bills, composed of sixty-two sections, which places in the hands, in the power, of the Supreme Court of this State the duty of prescribing rules and regulations for the practice in the Circuit Courts and in the Courts of Appeal and in the civil courts of this State.

Now, gentlemen, I have confidence in the Supreme Court of this State that they will prescribe, calling to their help and aid the members of the Bar of this State, a simple set of rules which will guide and direct the practice in this State.

Pardon me for this personal reference: the Public Service Commission of this State, of which I was chairman, adopted some twenty-odd rules providing for simple procedure. I have never yet known that commission to dismiss a single case for failure to strictly comply with the rules, when the spirit of the rules had been complied with; and you will find that to be the disposition of the courts of this State. In my opinion, gentlemen, if this Bar Asso

ciation will adopt a simple practice act, placing in the hands of the Supreme Court the making of rules, providing that the act shall not become effective for some six months or twelve months after the adjournment of the Legislature, to give the court time to get the committee of the Bar Association and the lawyers together, you will have secured a flexible code of simple rules such as you will find in Connecticut, Michigan, and other States; you will find the matter simplified a thousandfold more than by the adoption of this proposed code revision you are coming in here with now.

MR. HALLIBURTON: Mr. Chairman, I have listened to these gentlemen talk about this New Jersey set of rules-I was a member of Governor Major's Commission, and I had those rules before me while I was working on that commission, and it is the most complicated set of practice rules I ever saw. As a matter of fact, it is nothing on earth but simply the New Jersey rules of practice; any man that would take them and read them would find out that they are much more complicated than anything we have.

Now, the members of the Bar out in the State are against turning the making of these rules over to the Supreme Court. Some members of the Supreme Court for the last five or six years have been trying to provide that you can't take an appeal to an appellate court except by permission of some appellate judge or by the court. A part of this Association was opposed to

that proposition flat-footedly, and will fight

it tooth and toenail.

Here's what I think about Mr. Lamar's proposition as it is presented here: It isn't a proposition; it's simply that we suggest to the Legislature that they put the rules of practice in the hands of the Supreme Court. Now, if you want to suggest something practicable, why not come here with a short practice act, and let the Supreme Court make a revision of those rules? I don't want to be put in the position that the Supreme Court can say I can't go into court and protect the rights of my clients. And there are some other things, too. Their own rules aren't perfection, not by a great deal.

And they haven't changed them very much; they have simply, in the last few years, construed them in the interests of the litigants. But for a great many years here under their own rules

they were kicking men out of court day after day and week after week that in my judgment had substantially complied with their rules. I don't know; I don't think the 'Supreme Court as a body knows much more about what should be in the practice act than the members of the Bar do. They are very honest and estimable gentlemen and good lawyers, but they are just like we are; they come from among us. And I think the members of the Bar ought to have something to say about what it should. be.

MR. FRED. W. LEHMANN, of St. Louis: There has grown up in recent years a very distinctive demand, which is practically universal in the country, for a simplification of legal procedure; procedure which for many, many years has remained absolutely unchanged.

Assuming that forty six years ago, when I was admitted to the Bar, I was qualified to conduct a law suit and had gone to sleep at that time, and waked up now, I could apply the knowledge I had of technical procedure at that time; we haven't made a step in advance since then. There has been progress made in every other line of business, save that of court procedure.

Now, a question is raised here as to the constitutionality of such an act. I have only to call the attention of the gentlemen to the fact that the Supreme Court may now make rules; it exercises that power today, and there isn't any constitutional limitation residing in the Legislature a supervisory upon the scope of that power. There is

power superior to that of the courts; and though an act of the kind suggested by Mr. Lamar were to be enacted, it would still be within the power of the Legislature at any time to nullify any rule or to impose by its own enactment a rule upon the court. So we have got no question whatever of constitutional power. As has been well suggested by Mr. Robbins, we have created administrative tribunals without number, giving them comprehensive powers, judicial or quasi-judicial in their nature over important lines of business, especially in the carrier business; and in every case we have permitted those tribunals to prescribe the rules of their own procedure and Mr. Atkinson has stated a fact which attests the propriety of a course of that kind: the fact that during the entire existence of The Public Service

Commission of this State no case has been dismissed upon formal grounds.

Now, what is the objection to our present procedure? One thing undoubtedly is multiplicity of detail; but that isn't the principal objection. The main objection is the rigidity and the inelasticity of those rules of procedure. The court can not mitigate the hardships of them, because it is always confronted with the proposition lex ita scripta, "so the law is written and we must obey it."

We have had discussion in this State over some cases where convictions in criminal cases have been reversed because, in the merely formal part of the indictment, the word "the" is omitted. What justification is there for such a decision? The only justification is that it was prescribed by the Constitution, and therefore the requirement was rigid, inelastic and unescapable.

Now, if that had been a rule of court, I venture to say no tribunal would have ever set aside a solemn finding upon a consideration of that kind. And you have made a step forward of the greatest possible importance when you have endowed the Supreme Court of this State with power to prescribe rules of procedure for all the courts, even if they were to adopt the very rules that are now in effect. I say that would be a step forward, because thoes rules being rules of their own formulation, prescribed by them, for the convenience and the dispatch of business, and not arbitrary and hard-and-fast rules imposed upon them by the law-making body, they would interpret these rules in the interest of the litigants.

Now, the rules of procedure to which we have reference do not mean rules of

right. They do not mean that the Supreme Court or any court shall determine whether a man has a right of appeal. The right is given by the Constitution, or may be given by the statutes; but we do say that the court may prescribe the mode of giving effect to that right: and right there is where we need a good deal of relief. We are more than two thousand years behind the times in that. When Paul was condemned by Festus to be scourged, he said, "It is not lawful to scourge a Roman citizen; I appeal unto Caesar," and his appeal was effected by the very declaration of his purpose, without anything more.

And I would simplify the procedure of the law of appeal to that extent: that we

may get up to where the world was two thousand years ago.

In England I have heard it stated by a Justice of their High Court, that in a criminal case where a certain man had been convicted before him; he simply turned to the man when the jury had rendered the verdict, and said, "Do you appeal?" The man said, "I do, my lord." He turned to the clerk: "Let the appeal be entered." That was all there was.

Now, here in this country in a great many States, and it is true in this State, we would begin to study how to carry that appeal into effect; it should not require one moment of a lawyer's time nor ought it to require one moment of the time of the Supreme Court to determine whether or not an appeal has been properly perfected. The very fact that the man was there before them thinking at least of taking an appeal and perfecting one should give him a hearing. That would go far to expediting business. You will have a much greater expedition of business in all the courts when the mode of that business is simplified.

enor

Now, you talk about vesting an mous power in the courts by giving them authority to determine how business should be conducted. Why, it is rather remarkable; you have given to those same courts the power to condemn a man to death, and you don't think of withdrawing that power from them: but you say it won't do to let them alter the mode of procession to the gallows! You can kill, but you must have a legislative method of prescribing the adjusting of the noose!

When it is said, "The legislature won't do that;" "they won't do this," or "it is a good thing to be done but you can't accomplish it," I would reply that, if we are agreed that this is a good thing to be done then let us determine upon doing it, and stand by our program; and if we can't accomplish it today we will tomorrow. At any rate make headway by waiting rather than by proceeding piecemeal.

(Applause.)

JUDGE HARRIS: Mr. Chairman and gentlemen, to all good things there must be an end; and I want to say just one word in conclusion. I agree with nearly everything that Brother Lehmann has said, and Brother Atkinson, and Brother Lamar ; there's simply a difference of opinion as to how to accomplish the desired end.

Now, my friend Lehmann has suggested that the power in the Supreme Court to make these rules will remedy all the evils that we now complain of; and yet I say to my friend Lehmann, and I say to my friend Atkinson, and I say to my friend Lamar that the rules in this State that have caused most criticism in the administration of the law and in the administration of justice are the rules of evidence. They, in large part, are court-made, and the court has the right, and has had the right since the admission of this State in the Union to change them. The six sections of the statutes which we are now seeking to have amended are simply modifications of the common law which the Legislature of this State has forced upon the courts. Mr. Elihu Root has recently said in an address that this country is a hundred years behind nearly every civilized nation on the globe in the administrationn of our law, so far as the rules of evidence are concerned.

By our rules of evidence we bottle up a man and keep him from telling things in the natural way and the way that is easiest to him; and those rules, Mr. Lehmann, are court-made; and the Supreme Court of Missouri has had since 1821, the right to change them and hasn't done it. And yet you say we will get relief quicker from the Supreme Court than you would from the Legislature! Those equity rules of the United States Supreme Court that I have heard Brother Lehmann commend eighty years in being formulated.

were

In the first place, gentlemen, what will a rule of court be? If we give to the Supreme Court the authority to make the rules of practice, not only in their court but in the Circuit Courts, the Probate Courts, the County Courts, the justice of the peace courts, what will a rule of the Supreme Court be? Is it something to govern practice by which we shall be guided, or is it simply an indefinite, flexible and changeable suggestion that the court may change in any particular case in response to the eloquence or the persuasion of accomplished counsel?

If a rule is not something to be gone by, to be guided by, to be controlling in every case, then it it not a rule. It must be controlling so far as any particular case is concerned. You may see the imperfections in it and repeal it and change it in its applica

tion to future cases, but so far as your present case is concerned, it isn't a rule if it can legally be set aside. Of course a rule can be liberally or it can be strictly construed, but it at least should be definite and controlling as to its terms, otherwise you make it a farce, for when a person goes into court he would not know what was to be

depended upon. So much for your socalled "flexible" rules of court.

I make this suggestion in conclusion. Whatever we agree upon, it ought to be formulated here and presented to the special Legislative Committee, so it may have its consideration and approval, if possible. But I do say to you that, in my opinion, we will retard relief in this State if we fail to go before the Legislature and ask the amendments to our civil code suggested by this bill. If, in the future, the Supreme Court be given authority to pass rules governing all matters of practice in all courts of record, then what this Bar Association has recommended in this bill and may have been enacted by the Legislature into law will be a suggestion to the Supreme Court, at least, of the opinion and wishes of the Bar Association of the State of what is proper.

THE CHAIRMAN: Mr. Lamar, the mover of the substitute, closes the debate.

MR. LAMAR: In answer to the suggestion that my proposition wouldn't be as easily got through the Legislature as this list of bills we have here, I want to say this: although I never was a member of the Legislature, I believe it would be much easier to get through the Legislature than would this long list of bills. I live out in the country; I attend the courts in some six or seven counties in my section, and for some four or five years since this proposition has been studied and discussed by the American Bar Association and in the law journals; I have discussed it with the Circuit Judges and the lawyers down there and, in the main, they agree that it is a thing which ought to be done.

Gentlemen, if the Supreme Court is given power to make rules of procedure there is no reason to fear any radical changes in procedure. The law we now have will continue in existence as rules of court until they are changed by rule. The Supreme Court won't overturn all the rules of practice we have now at one time and give us anything revolutionary. I am sure