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with the judicial power as a member of a committee, as an arbitrator or as a judge, is that he shall be as independent and impartial and able as it is possible for man to be. That is the true idea of the judicial function, and so if this other matter of time could be out of the way, you would find that appeals for the settlement of controversies through committees of any corporation, or through arbitration, would vanish.
It is one of the functions of a Bar Association to devise ways and means to improve the practice in the courts. I am saying no words of disparagement or imputation against the administration of the law as it is; it is better than many people believe, and yet I am perfectly sensible of the fact that it is far from that which it ought to be. It is not the fault of the lawyer entirely; it is not the fault of the court entirely; it is not the fault of the legislator or the citizen entirely; but all share in the responsibility, and all look to you to devise those means which will improve and better the practice of the law and so make the administration of justice more what it ought to be. How shall it be done? There are many ways. I have only time to suggest one or two. There is a constant tendency in the legislation of this country to tie up the hands of the court and the judge. People sometimes in the legislature and sometimes out of it act as though the judge was not to be trusted, and think the more they bind him by arbitrary rules the safer they are. Never was a grander mistake. If you want to have justice administered in the most expeditious and best way, untie the hands of the judges; give them a greater freedom, and you may be sure that the outcome will be for the best interests of this state and every individual within it.
Take this simple illustration. A committee of a board of trade is notified to-day that there is a dispute between two of its members; one says that another has violated his contract. It meets to-morrow and hears the statement of the two parties; the next day it decides the dispute. Compliance must be made with the decision within five days, or the offender is disciplined; the whole thing is ended in a week or ten days. The same man goes into court and files a complaint, etc. The law says, and the judge has no power to change the law, that a summons must issue and give the defendant twenty days or thirty days, as the case may be, before he is called upon to answer. It may be a claim on a note where there is no possible defense; it may be a dispute about a mercantile contract which ought to be settled at once; but the moment it goes into court, the legislature has put an absolute restriction and you can not get your adversary into court; you can not invoke the power of the judge; you can not get any exercise of the judicial function until twenty or thirty days are past, and then under the law he may demur or answer, and so prolong the litigation. I do not mean to say that it is wise to do away with all rules of procedure. Give plenty of time in the ordinary case, but give to every judge who sits in a court of record the power when the plaintiff comes to him and says: "There are circumstances in this case which justify you in compelling immediate answer and in disposing of this case immediately,” give him the power to do so. Whenever you put it within the power of the judges of your courts to close a controversy without waiting as they have to now, you will speedily bring to an end the settlement of controversies by committees and boards of arbitration.
Another thing. Do not be so anxious to give every man the right to many trials. Do not magnify the right of appeal, as though that was the one inalienable right which Thomas Jefferson had in mind when he wrote the Declaration of Independence. It is a most marvelous thing, to my mind, in the history of the jurisprudence of this country, that every case seems not to be tried in the trial courts, but only or chiefly in the appellate courts. Again and again you find a corporation counsel, who when a case is pending in one of the trial courts, sends a young man out there; telling him to offer all the testimony, make all the objections, save all the exceptions, have a good stenographer, and see that everything is taken down (and, by the way, while I have great respect for stenographers- I hope there are none here --I think one of the greatest impediments to reform in this respect is the stenographer), and that is all of the case there is in the trial court. It is then taken into the appellate court, and there the counsel comes and makes all his points. The case is, in fact, first tried there. This should not be tolerated. Every case should be ended at the first opportunity and, if possible, by the first court. I have always had great admiration for a justice of the peace in our state. He went one day into his office; suit had been brought to recover the value of a calf. He looked around the room, and on one side there were some dozen people, and on the other side fifteen or twenty. He turned to the contestants and asked who these men were, and was told that they were all witnesses. “What is the value of that calf ?” “Five dollars.” “The case is dismissed; Mr. Plaintiff, I will pay you the value of that calf myself.” I know it is said that the poor man should have the same right in the highest court as the rich. It is said that a case involving the smallest amount may present the most important question. This is all true, but no case should be taken from the trial court as a case bodily. When some of those cases come to our Supreme Court, and I see the boys bring huge volumes, three to four thousand pages, and place them before us, I groan; every member of the court groans; and I know it won't be but a little while before one of the clients groans. In fact, the only persons about the court who smile are the clerk and the printer. They are paid by the folio. It is a parody upon the administration of the law. If there is an important question developed in a case before a justice of the peace, or before any trial court, I do not care how little the amount in controversy, let the court preserve that particular question and send it up for the decision of the appellate tribunal. That is all that an appellate tribunal should be for; not to review matters of fact and unimportant questions, but to reach out for those important questions; those involving, to a large degree, the rights of the individual, the rights of the state, and the rights of the nation. Allow everything other than these to be settled in the trial courts.
Now, these are mere outlines. I have no time to go into details. Many other suggestions will occur to you as they occur to us all. One thing is true, my brethren. The older you grow, the more you have to do with the practice of the courts, the broader will be your experience. You will see here and there this and that which may be changed. Do not always be in haste. It is not every change which is a reform. It is not a wise policy to imitate the farmer who burned his barn to destroy the rats. It may be that the thing which occurs to you is a change which may not be wise. Go slowly; at the same time have ever in mind that upon you, as upon no other class of society, rests the duty of seeing that the administration of the law, the modes of procedure, all that goes to make up the development of the exercise of the functions of justice in this nation, rests primarily and largely upon you, and I hope the Bar Association of Colorado will be faithful to the duty which is cast upon it. Let it be said of Colorado, that your system of procedure, that your administration of justice, stands so far in advance that Colorado justice shall be symbolical the world over. So doing, brethren of the bar, you can do more for the state than the men who go into your mountains and dig from them their treasures of mineral; do more than the men who build your railroads; than the men who cultivate the fields and gather rich grain; more for the the state than any other portion of the community; for it is true that it is written by the finger of Almighty God upon the everlasting tablets of the universe, that no nation or state can endure or prosper into whose life justice does not enter and enter to stay. PAPER
CHARLES E. GAST,
OF THE PUEBLO BAR.
THE COLORADO DOCTRINE OF RIPARIAN RIGHTS
AND SOME UNSETTLED QUESTIONS.
We are developing in Colorado a system of riparian rights, that negatives alike the principles that obtained both under the common and the civil law; a system that is sui generis, and strikingly illustrative of the adaptive tendency of all law to meet natural wants and accommodate itself to particular conditions. The cardinal principles of the system are few and simple, but the application of them to conflicting interests is sometimes difficult. The attention that is now being paid to the reclamation of arid lands by irrigation, the large amount of capital that is being invested in irrigation enterprises, the growing scarcity of water available for such purpose, and the consequent necessity of husbanding and conserving it for beneficial uses, makes the subject an important one. To the lawyer, it is largely an unexplored field. The varied controversies that have already arisen and some that are being foreshadowed have the charm of novelty; and it is worthy of consideration by Colorado lawyers whether a legislative code sufliciently minute and specific to define with reasonable precision these rights and to afford a practical working system for their enforcement is not fast becoming an imperative need.
The Colorado doctrine of riparian rights may be summed up in the statement that riparian proprietors, as such, have no rights; that is to say, they have no usufruct of the waters flowing in the natural streams, not enjoyed by others whose estates are non-riparian. Two sections of the Constitution aptly and tersely