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Sec. 22. Be it further enacted, That the expenses of holding and conducting said election shall be paid as now provided by law for the election of members of the General Assembly, and that the expenses of holding said Convention and per diem and expenses of the members thereof shall be paid on warrant on the Comptroller out of any money in the treasury not otherwise appropriated; provided, that all accounts and expenses, etc., shall be certified to and approved by the President of the Convention. The delegates shall be allowed and paid $4.00 per day, and $4.00 a day additional for board and expenses, and the same rate of mileage as now allowed by law to representatives of the General Assembly.
SEC. 23. Be it further enacted, That this Act take effect from and after its passage, the public welfare requiring it.
The Vice-President :—Gentlemen of the Association, you have heard the report of the Committee, and it is now open to discussion, under the rules of the Association.
Mr. R. G. Brown:—Mr. Chairman, and Gentlemen of the Association:
I have been interested in the matter of a constitution for Tennessee, or in its reform as much, if not more so, I think I am safe in saying, as any man in the State. I have made every effort to procure a new constitution for Tennessee for many years. But I believe it is as hopeless now as it was in 1907. I believe you will find the same forces at war today as I found in 1907, and that although on quite a number of propositions you will get a majority of the people to say they want a new constitution, you will find that when it comes to a vote, they are going to vote against a constitutional convention. We might have some hope if we could get the people to adopt the Ohio plan. If we adopted the Ohio plan there might be some hope of relief. But I don't believe that we could ever get that. I believe that you will find that the corporations are going to oppose a constitutional convention, for fear that the common people will adopt measures against corporations. I believe that you will find that a large number of the common people will oppose a constitutional convention on the ground they fear the corporations will get control of that convention, and therefore, they will vote against the constitutional convention. You are going to hear the “State Wider” saying that he fears the whiskey ring and its corruption will get control of the convention, and you will have the liquor question adverse to them in the constitution. On the other hand, you will find the saloon men say we fear the State Wider will get control, and therefore they oppose a convention. For that reason we are going to have a great many people opposed to the constitutional convention. In order to have it, you have got to get a majority of the votes cast at the electionnot the majority of the votes cast for or against the convention, for in the majority of the votes cast, every silent vote is a vote against the convention. For that reason I believe it is hopeless to get a constitutional convention, and so I desire to make this amendment: That this Committee be instructed to draft a bill to submit to the people an amendment of the amendment. In that way we may be able to segregate the influence opposed to the entire convention.
The Vice President:>Is there a second to that motion ?
Judge Fentress:-Mr. Chairman, I think that Mr. Brown is correct. I do not think that the people of Tennessee are now in a humor to have a new constitution. I do not think that the great majority of the people, farmers, for instance, who are our largest class, feel any interest in it whatever. The interest is almost exclusively confined to the people who live in the city, and who are effected by our government more conclusively than by the people who live in the rural districts.
But I see no reason why we should not have certain amendments, as suggested by Judge Brown. I think the State of Tennessee should have a supreme court composed of nine judges and let them sit in each of the three Grand Divisions of the State. Let three of the judges examine the record in every case, and the briefs in every case, and let the final judgment of that law suit be the judgment of every judge on the bench as to the consideration, and if the three judges are not in accord
as to the judgment, let it be certified up and be heard by the full bench sitting at the capitol.
It was moved that the amendment by Judge Brown be tabled.
The Vice President :—The amendment is laid on the table. We now go back to the original proposition, and that is, the adoption of the report of the committee.
Mr. Biggs:-I move the report of the Committee be adopted as relates to the Ohio plan.
The motion having been made and seconded it was put to a vote of the Association, and passed by an unanimous vote, and declared carried by the Chairman.
The Vice President :-I notice the next subject on the program is the report of the Committee on Judicial Administration and Remedial Procedure, by Mr. L. D. Smith, Chairman.
Mr. Smith:-I will pass it to the Secretary and have him read it.
Report passed to and read by the Secretary as follows:
REPORT OF COMMITTEE ON JUDICIAL ADMINISTRATION AND
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Notwithstanding this committee has in the past suggested changes intended to improve our judicial system and to correct some of the evils of the procedure therein, practically nothing has been accomplished by legislation or otherwise to excite observation or comment. The policy of gradualism in the development of procedure has been pursued by the Association until it is now believed only radicalism can induce even conservative action.
The lack of interest in the improvement of our system may be taken by some as an indication that the profession is entirely
satisfied with it, but the manifest need of improvement leads us to believe that the profession has rather dispaired of practical reform.
The only important modification in procedure that has occurred in recent years is to be found in the new equity rules promulgated by the Supreme Court of the United States. We have hardly had time to judge of their practical value, but it cannot be denied that there existed a widespread demand for improvement and the investigation and thought devoted to their preparation by their eminent authors commend them to our favorable consideration.
Your committee believes that these rules can be applied to our chancery practice, and recommends that they be adopted in Tennessee, not only for the sake of uniformity, but for their inherent virtues.
There is one manifest defect in our present chancery practice that can be readily and beneficially changed. Under the present practice unless the court is in session it requires sixty days to get a bill at issue. A simple statute entitling the complainant to a judgment pro confesso on the day following the return day of the process, if no defense has been made, would remedy this defect; and the statute should require all defenses to be embraced in the answer.
The profession is still restless under the delays incident to the appearance term in our circuit court practice. Some practical suggestions were made with respect to this subject by a special committee at the last session of the Association, and that committee is to report again to the present session. It is to be hoped that the Association will take some practical action with respect thereto. There is a universal demand for the abolition of the appearance term.
Another subject of importance to which the Association has given some attention at the meetings without any practical results is that which was so ably presented to the Association by its present President when he was chairman of this committee reported to the last session held at Nashville and which has been emphasized by the American Bar Association, in favor of special findings by juries and the pronouncements of judgments on all questions of fact, leaving open only questions of law upon appeal. No better statement of the reasons in favor of reform along this line can be given than those found in the report above referred to. (See Proceedings of Bar Association of Tennessee, 1911, Page :)
It has been suggested in some quarters that all the defects in our system can be cured by the adoption by the court of rules of practice, and some are disposed to be content with legislation empowering our judges to adopt such rules as they deem adequate to that end. We do not concur in that view. The judges are too prone to serve their own conscience and are too far removed from the bar to have that lively appreciation of the defects in the system essential to ideal practice. Some of the judges want too many rules, others too few; beside, why should not the lawyers have a say in the enactment of law regulating procedure? Furtherfore we believe the defects are too vital for so mild a remedy. The whole system needs heroic treatment. Unquestionably our system is not ideal. Shall we cease to struggle for the ideal merely because we may not hope to attain it?
It may be properly doubted whether we can approach the ideal -under our constitutional limitations, but we believe all will agree that important improvements can be made. In considering changes we should keep in mind not merely the wisdom of avoiding unnecessary delays in the administration of the law, but our guiding star should be the attainment of correct determination of controversies. Avoiding delays is only one means to the latter end, the main object of court procedure.
We would make changes in our system of judicial administration and procedure along the following general lines :
1. Provide for the election of county judges in every county, more than one in each county, if necessary to hold the county courts. Separate the office of county judge entirely from the fiscal affairs of the county. Let that be attended to by some county commission. Confer upon the county court not only jurisdiction of all probate matters, but of all criminal cases of the grade of misdemeanors and of felonies in cases of submission, and of all civil cases of all kinds, whether of an equitable, common law or statutory