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There remains to consider, if ever this power is exercised independently of the ordinary appellate jurisdiction, and independently of the original jurisdiction over writs of certiorari and mandamus, when and how?

To venture any answer to these questions, in view of the fact that no precedent can be found in the books of the actual exercise of such power, may seem an act of temerity.

Notwithstanding this, we will throw out a suggestion.

We think that at least one possible, though improbable, emergency may arise where the court has clearly intimated that it would exercise its power of superintending control, though in cases not by statute subject to appeal or writ of error. In the case of People vs. Richmond, it is suggested that the Court of Appeals may at times have views differing from those promul. gated under like circumstances by the Supreme Court; "but it is believed that in such instances the Court of Appeals will voluntarily yield its views to that of the higher tribunal.” The belief so expressed is undoubtedly well founded, since the Court of Appeals has invariably been governed by that principle. Still it is theoretically possible, though greatly improbable, that at some time the Court of Appeals in cases under its final appellate jurisdiction will persistently adopt views diametrically opposed to those previously announced by the Supreme Court in cases there where the same principle is involved. Should this be so, if the Supreme Court could not find a method to control this constantly declared diversity of opinion, “confusion worse confounded” would result. The law would become a pandemonium. The principles governing certain contentions to be enforced by the lower courts would vary according to the pecuniary amount which happened to be involved in the judgment.

We believe if such an exigency shall ever arise, the Supreme Court under its power of superintending control can compel the Court of Appeals to conform to the views of the higher tribunal. It is manifest, in such cases it could not do so by the exercise of ordinary appellate power, because we have assumed that these supposed decisions of the Court of Appeals were rendered in cases within its final appellate jurisdiction.

Having thus suggested one answer to the question when the power under discussion may hereafter have occasion for its exercise, we will now endeavor to answer the question, how?

It may be urged that the writ of certiorari would not be a convenient instrumentality, because it has only been used to correct usurpation of jurisdiction, and in the supposed case made, the Court of Appeals would be acting within its jurisdiction. We suggest that the common law writ of error as an original urit of right could perhaps be used in such a case, not in the exercise of ordinary appellate jurisdiction, but in order to bring the case into the Supreme Court, independent of statutes concerning appellate jurisdiction, in order to enable it to exercise its power of superintending control. If this could not be done, then as we have seen, the power exists in the court to create new writs when necessary, or even to use old writs for new purposes if the exigency so demands. A writ analogous to or in the nature of a writ of certiorari might issue, the object of which would be more comprehensive than the objects for which that writ has heretofore been exercised. In any event, we believe the court has ample authority and can not be thwarted in exercising its jurisdiction of superintending control by lack of precedents. It has been the boast of the common law throughout the ages that there is no wrong without a remedy.

It is a matter of curious interest that in one case an attempt was made to have the Supreme Court by certiorari exercise superintending control over the Court of Appeals. We refer to the case of the People on the relation of Baxter vs. Court of Appeals, 24 Colo., 186. The writ was sought on the alleged ground that the Court of Appeals in reviewing a certain case had reversed the judgment of the trial court on conflicting testimony, contrary to a rule of decisions laid down by the Supreme Court. The Supreme Court denied the writ and dismissed the proceedings, solely on the ground that it is always the province of a court of review, when the question is properly presented, to review the evidence and determine whether the trial court or the jury have misconceived its force and effect. The court also say: “We cannot for a moment admit if in the performance of its duty, it should commit an error in respect to the matter now complained of, that this court would have any right to interfere, under the guise of its supervisory power over subordinate judicial tribunals."

The court further say that on examination of the case, it is convinced that there was no ground for complaint.

We consider this case quite significant, not so much from what the court says, as from what it does not say. It seems to

us reasonably probable, that, if in that case there had been a clear, manifest and palpable disregard shown by the Court of Appeals to previous decisions of the Supreme Court on some matter of important substantive law, the Supreme Court would have taken jurisdiction of the case in order to insure uniformity of legal decision in this state.

It may be that future legislation may limit the cases from which appeals or writs of error can be taken by litigants from the District Courts either to the Court of Appeals or to the Supreme Court. To illustrate: Possibly the legislature some time may provide that no appeal or writ of error can be taken from the District Court in a case which involves less than $500. Should such ever become the law, it may happen that some District Court in a case involving less than $500 would disregard some well defined rule of law announced by the Supreme Court. In such a case, we believe the Supreme Court could exercise its superintending control either by means of a writ of error independent of statute as an original common law writ of right, or by certiorari, or by some other writ to be formed under its power of general superintending control.

Having already imposed sufficiently upon your patience, we will not suggest any other possible cases in which the power under discussion can be independently exercised, but leave the subject, if perchance it has aroused sufficient interest, to those more competent to give it more thorough exploitation.







(a.) Teaching Procedure in Law Schools, and
(b.) Requisite Education Preliminary to the Study of Law.

Gentlemen of the Bar Association: Recent years have been marked by a marvelous advance in the standard of legal education, and in the requirements for admission to the bar. This advance is, beyond question, largely due to the cordial interest of the profession, and to the organized efforts of such bodies as this association. Therefore, as a member of your Committee on Legal Education, I submit to you to-day two of the many problems of legal instruction, as they appear to one constantly engaged in that work. These problems are numerous and, to teachers of law, very interesting. The raising of the standard of legal education has been marked by a corresponding improvement in the methods of instruction. Teachers of law are usually allowed the largest liberty in the matter of methods, and the importance of the personal equation in teaching is constantly recognized. They are much given to discussing the problems and difficulties which arise. Many of these questions are both important and interesting. To inflict them all on you would be unpardonable. I find it difficult to select, even among the most important. I should like to make my contribution to the controversy, which has raged for years all over the country be. tween the case-method and the use of text-books in teaching law. I have had some experiences also as to the much discussed utility of written exercises in teaching substantive law, which I would like to report. But these matters must keep for some more convenient season. I will present to you to-day but two problems; one, as to which I conceive that this body is charged with a responsibility, concerns the required standard of education, preliminary to the study of law; the other, on which I wish to provoke discussion, hear your views, and so gain light, relates to the feasibility of practically teaching procedure in law schools.

Let us consider the latter first. It recalls to our memory the old controversy as to the comparative merits of the Law School and of instruction in an office, which even yet has not quite died away, though practically, it seems to have settled it. self, in favor of the Law School. After all, the difference between the respective plans was always more apparent than real. Neither system is perfect; each has its peculiar faults counterbalanced by excellencies altogether its own. And those who are most interested in law school work and are most anxious for the future development of that system, will most readily admit that, heretofore, its gravest defect has been the want of that practical instruction, in all branches of legal business, which has always been the chief merit of the office training. They will acknowledge that, in its further progress the law school must rival tthe office in that practical instruction. And I venture to say that in a majority of the four or five score of law schools of this country, experiments are being constantly made toward a more effective teaching of procedure, in the broad sense of the word. It is the great problem of legal education to-day. The law school management is conscious of a deficiency. It is true that much has been done. The law school already provides systematic, thorough and well rounded courses of readirg, under instructors whose business in life it is to be exacting. Its quizzes are frequent and searching. The student is taught to analyze accurately adjudicated cases, to discriminate the value of authority, and to weigh precedents. He is shown the source of legal principles and taught to trace their course of development, and trained to apply them. By means of classroom discussions, and disputations with his fellow-students he acquires a confidence in his own conclusions, learns to keep his head in the face of antagonism, and to express himself with

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