ought to be a poor man's court, in the sense in which that proposition is usually urged. Every tribunal of justice ought to be a poor man's court, that is to say it should not be intended for any particular class of the community. The equality of justice is not subserved by remitting one man to a tribunal presided over by judges differentiated in honor and in respect and emolument from judges whose services are better paid, who are invested with greater jurisdiction and dignity and who are made available only for persons having controversies involving pecuniary amounts that the poor man cannot expect to control. The only differentiation that is consonant with the theory upon which courts of justice should be administered, is one which is related to the expedition of business, so that causes which may be described as "short causes," causes which may be categorized under some generic classification, and are capable of being disposed of with a minimum of research and demand upon the time of either counsel or court, may be tried in such tribunals as may properly be erected as divisional parts of the court of the state."*

Mr. Boston especially commends the sentence which permits suing the state in the unified court. "Why should not the People of the State be as amenable to judicial control-to the extent at least, of judicially determining their duty, as the citizens of the state? One of the greatest hardships that can be imposed upon a citizen or property owner, is to find that the state has by devolution or otherwise, acquired a junior lien or some doubtful claim, and that he cannot remove it or procure its satisfaction, either by disputing it or by paying it off. Yet such is not an infrequent result of the doctrine that the sovereign cannot be sued in its own courts without its consent. Repeated attention has been called both in the American Bar Association and the New York State Bar Association to the

Whether so intended or not, this appears to be a condemnation of the committee's choice in excluding justices of the peace from the reorganization.

intolerable hardship of this situation, illustrated by actual instances."

Section 2. Existing courts abolished. All the existing courts, both of record and not of record, are abolished from and after the last day of December, one thousand nine hundred eighteen.

All their jurisdiction shall thereupon be vested in the Court of the State of New York, and all actions and proceedings then pending in such courts shall be transferred to the Court of the State of New York for hearing and determination.

NOTE The report says that there is an instance not remote of the consolidation of jurisdictions in the State of New York which effected good results and negatived hostile predictions. hostile predictions. The constitution of 1894 consolidated into the Supreme Court the Superior Court and the Court of Common Pleas. The existing judges of the courts thus abolished became judges of the Supreme Court in which they made ex

cellent records.

Section 3. Divisions of the Court of the State of New York. The Court of the State of New York shall be organized into divisions to include always a division of final appeal and such divisions of intermediate appeal and divisions of first instance as may from time to time be necessary.

NOTE This section is commented upon at length and with particularity by both The the committee and Mr. Boston. committee appear to take the view that the section does not necessarily require the existence and employment of a division of intermediate appeal. The report says, in part: "But whether there be a court of last resort and intermediate appellate tribunals or only one Court of Appeals, the practical suggestion is that that shall be a matter for the General Court itself to determine. It should, therefore, be vested with permissive power to divisionalize itself in matters of appeals as in other matters as from time to time the exigencies of judicial business might require. The matter ought not to be foreclosed by the

constitution itself, nor ought it to be left to the legislature to determine by statutes or amendments thereto, made from time to time, perhaps at the instance of parties having a particular axe to grind and a particular litigation which they desire either to end or to carry still further."

Mr. Boston apparently does not consider the section merely permissive. He favors a single appellate court sitting in divisions for the determination of most causes, as would be necessary in so populous a state as New York, saying: "It appears to me that if the judges of the Division of Final Appeal sat in divisions with the possibility of the reservation of review, according to rule of court, of matters of sufficient public importance to require the consideration of the majority of the entire division, it would result in a more harmonious administration of justice and a greater certainty of law than any system based primarily upon an initial appeal to an intermediate division of different personnel. .. Where there is but a single court, I can see no objection to abolishing the intermediate divisions of appeal and having the final division sit in divisional parts, with reservations to the full bench of the final division, a majority to constitute a quorum If the court were constitutionally free to follow this course, it could be provided by rule, and the court could adopt from time to time such course as should seem appropriate, without the rigid inflexibility contemplated by the proposed section."

All the comment on this question represents an advance since the drafting of the model judiciary article for the proposed New York constitution, which article was published in the second number of the JOURNAL. In section five, page 6, it provided for a division of intermediate appeal in each of the four judicial depart ments of the state.

There is no greater opportunity for economy of effort and certainty in decisions than in reconstruction of the topheavy appellate court systems in the larger

states. A full discussion of the subject with constructive proposals is to be found in Bulletin VII-A, A. J. S.

The power conferred by Section 3 to create divisions of the trial branch for administrative purposes is of course necessary in a unified court, and is treated by both sources quoted from as too obvious to need comment.

Section 4. Judicial departments. The present four judicial departments of this State are continued, but the legislature may alter from time to time the boundaries thereof, except that the first judicial department shall always consist of the counties of New York and of the Bronx, and the others shall be bounded by county lines, and be compact and equal in population as nearly as possible. The present number of judicial departments shall not be increased.

There shall not be more than one division of intermediate appeal in each judicial department.

NOTE Mr. Boston's comment: "Section 4 seems also to be open to the same sort of criticism as section 3. Why should the Constitution create judicial departments? Why should not that likewise be considered a part of the administrative business of the court, to be dictated by its experience of local convenience and necessity?"

Section 5. Chief justice and justices. The Court of the State of New York shall consist of one chief justice and of as many justices as there are justices and judges in the existing courts of record, hereby abolished.

The chief justice shall be elected by the people of this State for a term of years, and may be re-elected for one or more terms. Should the office become vacant during any term, the governor shall fill it by appointment for the remainder of the term.

The justices shall be appointed by the chief justice, subject to confirmation by the Board of Assignment and Control.

No person shall be elected chief justice nor appointed justice who has not been a

member in good standing of the bar of this State for at least ten years.

The justices shall serve during good behavior or until they shall have attained the age of seventy years; but any justice who shall have served continuously for fifteen years and shall have attained the age of sixty-five years may apply to the Board of Assignment and Control to be retired, and, upon that Board certifying that the reasons assigned by him are sufficient, he shall be so retired.

The salaries of the chief justice and of the justices and of the official staff and of the members of the Committee of Discipline who are not justices shall be regulated by the legislature, but no salary of any justice shall be diminished during his term of office.

A justice, whose term of office shall after fifteen years of service cease by reason of age or retirement, shall receive an annual compensation equal to two-thirds of the salary he received during the last year of his term.

The Board of Assignment and Control may certify that the number of justices shall be reduced, and thereafter no vacancy shall be filled until the number shall be reduced accordingly. The number of justices shall not be increased except by the legislature upon application of the Board of Assignment and Control.

NOTE-The Report devotes eleven pages to discussion of the plan for selecting judges presented in the foregoing section. There is not space in this article for an extended consideration of the proposal that the people should elect the head of their state judicial department and confer upon him the duty of selecting judges to fill vacancies. There is a very common belief in many states that the plan of having all judges elected directly by the people, and for relatively short terms, will never be departed from. It is generally admitted, however, that the practical theans for securing uniformly good results from the present elective system has never been discovered, notwithstanding a great deal of experiment.

Interest in the question of selection of judges undoubtedly grows. The recall

movement and the campaign against the recall have done much to stimulate curiosity. We are moving from the primitive view that there are only two ways to select judges, namely; by popular election and by the governor's appointment, and only two kinds of tenure, namely; short elective terms and life tenure. As a matter of fact other methods of selection and other kinds of tenure are now, and for generations have been, in actual use in certain states. And it is conceivable that there should be a number of other methods for filling judicial office. A comparison with methods in vogue in all other nations tends to disturb the smug belief that we shall always adhere in most of our states to a system unknown in countries where there is comparatively little dissatisfaction with judges and courts-a system which occasionally results in notoriously bad selections.

The report points out the limitations upon the power of appointment conferred upon the chief justice; his term is to be short and during an average term he would be able to make only a few appointments, never enough to alter appreciably the complexion of the entire court or to impress it to a serious extent with his individual peculiarities. His influence in this respect would be less than the influence of the average president in shaping the personnel of the United States Supreme Court, if only from the fact that newly appointed state judges would presumably be younger than appointees to the Supreme Court. Of course, if the chief justice should serve several terms he would eventually name a considerable proportion of all the judges of the state court but this could happen only through the repeated confirmations of his work by the electorate.

The second great limitation upon the appointing power conferred by Section 5 is the requirement that the appointments shall be subject to confirmation by the Board of Assignment and Control, the members of which are chosen by the judges of the several divisions of the general court. Mr. Boston sees no virtue in this division of responsibility, saying: "Why

should not the chief justice, if elected to make an appointment, have the power of appointment, instead of the mere power of nomination for confirmation by the Board of Assignment and Control? In New Jersey the Chancellor's appointments of Vice-Chancellors has proved a great success, and no body of men command greater respect than the appointees of the Chancellor."

In the optional plan set forth in the Bulletins of the Society, providing for selection by the chief justice, there is no such division of responsibility. The limitation is this; that the chief justice shall choose all, or if preferred, half, of his appointees from a public eligible list, which list shall contain twice as many names as there are places in each division of the court, and shall be kept full by the judicial council, which is almost identical in powers and duties with the "Board of Assignment and Control."

Section 6. Annual convention and special meetings of the justices. The justices shall convene annually in January to elect the Committee of Discipline, a presiding justice of the section of appeal and presiding justices of the divisions of intermediate appeal, if any be organized in the several judicial departments, and to determine any matters relative to the Court of the State of New York that it is within their province to determine. They will also elect one justice from each judicial department to serve on the Board of Assignment and Control.

The Board of Assignment and Control may at any time call special meetings either of all the justices or of the justices of any judicial department.

NOTE. It is now entirely clear that provision for meetings of judges must be part of any enlightened scheme of judicial organization. The above section differs from the plan embodied in the American Judicature Society's model draft by having the administrative board made up of judges elected by their colleagues instead of those appointed by the chief justice. A much more.important difference arises from the fact that in the Society's model draft the

presiding justices of divisions are made ex officio members of the judicial council, or administrative board. Under the plan above provided the judges might elect one of their number as head of a division, and another to represent the division on the Board of Assignment and Control.

It is easy to advance an argument in favor of having all heads of divisions ex officio members of the judicial council. Such a plan co-ordinates the entire court. It affords representation in the administrative board of every division by its authoritative head, so that at every meeting of the council the entire court is virtually present; it also affords constant representation of the council in each of the divisions. The result is necessarily unity.

The section affords another contrast with the Society's model draft. In the draft act powers of discipline are. lodged in the judicial council. The section makes a sharp distinction between the administrative government of the court and the whole matter of discipline. One board or committee lays down the rules and orders and another determines whether they are properly executed by the individual members of the court.

There is no excuse for dogmatizing on this point. Reasons in support of both plans readily suggest themselves. Discipline, which now looms so large, would doubtless become comparatively simple and easy under any plan which provided. a considerable measure of administrative unity. Discipline is not inherently any serious problem in the courts. Any well organized court will be well disciplined because when there is means for self-government and reasonable publicity the ideals of the more high-minded and selfrespecting judges will inevitably become the standard for all. The highest discipline is automatic and invisible. At the same time it is proper to provide machinery for dealing with the exceptional case, however rare.

Discipline, specifying the unfitness or unworthiness of the justice requiring such removal and certifying the record of the hearing of the charges against him.

Justices may also be impeached in the same manner as any other public officer.

NOTE-Mr. Boston's comment: "Section 7 leaves it doubtful, perhaps, whether in case of removal of a justice the Board is concluded by the certificate of the Committee of Discipline and must act ministerially. It would seem well to definitely settle this point in the section itself."

Section 8. Masters. The Board of Assignment and Control shall have power to direct the appointment of masters to dispose of procedural, interlocutory or supplementary matters, with such powers and for such terms of office as it shall by general rule prescribe, and it may determine the number of masters in the several judicial departments.

The chief justice shall appoint, subject to confirmation by the Board of Assignment and Control, as masters members of the bar in good standing who shall reside. in the judicial department in which they are appointed and who shall have been admitted for at least seven years.

The legislature may prescribe the salaries of the masters, which may vary in the several judicial departments, but in the absence of action by the legislature, the salaries of the masters may be prescribed and varied by the local fiscal municipal boards in the several counties, upon certificate of the Board of Assignment and Control.

NOTE-In New York the opportunity for a great improvement in procedure is seen to lie in the employment of competent masters, and the report treats this matter at some length. Similar opportunity exists in every state, but in degree relative to the amount of litigation. Wrong methods of selection and lack of administrative cohesion has served to cripple the use of masters or commissioners in all parts of the country.

Mr. Boston objects to the requirement that appointments to the office of master be confirmed by the Board, and adds:

"The economy and advantage of a properly administered system of masters is apparent. It is not only justified by the success of the plan in England, but it commends itself in practice through the satisfactory operation of the system of referees under the federal bankrupcy act."

Section 9. The Board of Assignment and Control. The administrative business of the Court of the State of New York shall be conducted by the Board of Assignment and Control composed of the chief justice, the presiding justice of the section of appeal and of one justice from each judicial department elected annually. Every power adequate to that end is hereby conferred upon it.

It shall promulgate rules for conducting the judicial business of the Court of the State of New York, and may prescribe common forms for use therein. In the absence of action by the legislature it may prescribe rules of evidence. It shall from time to time define the number and jurisdiction in civil or criminal matters of the several divisions of the Court of the State of New York and prescribe the parts and terms thereof, and assign justices to service therein.

It shall act without delay upon all appointments of justices and of masters. made by the chief justice under Sections 5 and 8 hereof.

It shall provide for the appointment of the official staff of the Court of the State of New York, except that each justice may, subject to its approval, appoint his own private secretary and confidential attendant.

It shall prescribe requirements of character and attainments for admission to the bar, including the oath of office, and shall admit those applicants who shall comply therewith.

It shall certify annually to the legislature such judgments against the people of this State as may require an appropriation.

The chief justice shall be the chairman of the Board of Assignment and Control. NOTE The report: "By this section. the great judiciary system of a state is