Vol. XIV

OKLAHOMA LAW JOURNAL Published by

WARDEN COMPANY

13-15 West Main Street, Oklahoma City, Okla.

CHAS. F. BARRETT, Editor.
FRED RISELING, Associate Editor.

Subscription: $2.00 per year

Entered at Oklahoma City Post Office as Second Class Mail Matter, under the Act of Congress of March 3, 1879

CONSTITUTIONAL AMENDMENTS TO BE VOTED UPON AT THE PRIMARY ELECTION

"The voters of Oklahoma will have nine Constitutional Amendments presented to them for their consideration at the August Primary. All of these propositions were submitted by the legislature, and only one of them (the Literacy Test-Senate Joint Resolution No. 6) is a political or party measure. Two of the amendments relate to the organization, consolidation, jurisdiction and power of the courts; one reduces the number of jurors required in certain cases and one makes the clerk of the Supreme Court an appointive instead of an elective officer. Some of the other amendments are purely economic measures and will be discussed in future issues of the Law Journal."

To the legal fraternity the four propositions that relate to the courts will probably prove of the greatest interest, and for that reason the Law Journal presents in this issue the arguments that have been filed in support of those measures. In the next issue will present the negative arguments that have been filed, and we invite communication from both the friends and opponents of these measures for publicity in future numbers.

we

The Law Journal is not a partisan publication, but desires to give publicity to arguments of weight on either side of questions of such importance to its readers as Amendments to the Constitution which will provide for material changes in the judicial departments of the state government. Some of these changes have been strongly urged by students of government efficiency in this and other states. Some of them are bitterly opposed by men whose high standing in the profession

No. 9

warrants a careful consideration of their point of view, and it is our purpose to give the readers of the Law Journal as complete a consensus of these opposing views as it is possible to secure between now and the day of the primary on which date the vote is to be taken.

A Test for the Initiative and Referendum

One of the Constitutional Amendments to be voted upon at the August primary is the proposition to repeal Section 12-a, an amendment that was adopted some years ago, but which the Lower House of the Legislature refused to vitalize by legislative act.

12-a Provides for an equitable distribution on a per capita basis of taxes received from public service corporations operating in more than one county, for the benefit of the common schools of the state, and the proposition to be voted on this year is a joint resolution repealing this amended section of the constitution.

Opposing the repeal is the redoubtable champion of aggressive and progressive legisUndoubtlation, Senator Campbell Russell. edly the best informed and most virile champion of popular government in Oklai mo !ie is fighting the repeal with a vigor and originality that is attracting attention in every section of the state and which bids fair to make this contest paramount to practically every other issue, except the presidential election or the literacy test if it should be submitted at the primary election.

While the fight over this matter involves a Constitutional Amendment, yet, it is in a sense, a test of the virtue and practical working efficiency of the referendum, for if the legislature of 1915 had done its duty, 12-a would have been in operation and the present contest is, therefore, in fact a referendum to the people to relieve them from the effect of an act of omission by the legislature.

If the

If the proponents of the repeal of 12-a should win, it would be a repudiation by the people of their own act in amending the Constitution, before that amendment had been placed in operation by statutory law. people dereat the repeal, and pass the initiative proposition to be submitted by Senator Russell and his petitioners, they will strengthen the operation of the initiative and referendum and convince a great many doubting Thomases that they are alive to the power possessed by the people under this provision and are competent and qualified to use it when the occasion demands.

The result of this double-barrelled contest will be awaited with interest by every student of government in Oklahoma and ought to be of interest to many outside states.

ARGUMENTS FAVORING CONSTITUTIONAL AMENDMENTS

As a part of the campaign of education that will be necessary to prepare the people to vote intelligently on the various amendments to the Constitution which are to be voted upon in the August primary, The Law Journal has decided to publish the affirmative arguments filed on behalf of those propositions that relate to changes in the court and jury systems of the state.

These changes are not political, but are being urged on the grounds of economy and the desire of many serious thinkers to eliminate antiquated and costly features of our court and jury systems, and to make them conform to the ideas and requirements of progressive, modern thought and new conditions.

In a succeeding issue we will publish the most important of the negative arguments, and in the July number we will print the rejoiners. [Editor.]

ARGUMENT FAVORING ADOPTION OF Constitutional Amendment Proposed by Senate Joint Resolution No. 16 To Be Voted on by the People August 1st, 1916.

W. M. Bickel, J. L. Carpenter, R. A. Keller, Joe A. Edwards, W. J. Risen, Henry W. Sitton, E. E. Glasco, Wash Hudson, Joint Legislative Committee to Prepare Argument.

It is the purpose of this amendment to bring about efficiency as well as economy in the administration of the trial courts. By the abolishing of the county court and vesting its jurisdiction in the district court duplication of expense would be obviated. In addition the district court being a court of record and original jurisdiction is a court of more dignity and power than that of the county court, and lawyers would make financial sacrifices in serving as judge of the district court, when they would not be so inclined to render such service for a county court, which is a court of limited jurisdiction, at a financial sacrifice.

Statistics show that a larger per cent of cases tried in the county court are reversed by the Supreme Court than in the district court, this being evidence that lawyers more experienced and of accurate training have sought the honor of being judge of the district court rather than the county court, although in many instances there is no much difference in the compensation.

In a large part of the state there appears to be absolutely no need for a county court, and the maintenance of the county court in such parts of the state is an unexcusable burden upon the tax-payers. In other parts of the state, where there is more probate business, there is more support and sentiment for the county court, but if the probate business can be handled as well or better in the dis

trict court in such sections of the state, as a matter of justice to the other portions of the state that have no need for the county court, this amendment should be voted for even in the sections where there is more probate busi

ness.

Necessarily if this amendment is adopted more district court districts will be established by the Legislature; especially in that section of the state where there is so much probate business. Under this amendment the district judge selects the district clerk who holds office at his pleasure. When the judge is elected, the people, through him, elect the clerk, empowering the judge to pass on his qualification, select and remove him at pleasure. The court clerk in this state as a rule and on an average draws a salary of about two thousand dollars a year. With this office appointive a very efficient and capable man can always be secured. The fact is you can procure as good a clerk by appointment at two thousand dollars a year as you can as a rule secure by election at three thousand dollars a year. The expense and harrassing of a campaign brings about this condition. Many well qualified and capable men are deterred from seeking such places even at ample salaries where they have to go through a primary and general campaign. Clerks do not exercise any political discretion. Their duties are merely ministerial. The judge, elected by the people, is responsible to them for the administration of his office and the clerk is an agency and a part of the court, subject to direction of the court, and the court clerk for that reason should be selected by the judge.

Under this amendment the Legislature may authorize the clerk, under the supervision of the district judge, to appoint guardians, issue letters of administration and exercise such judicial powers as are ordinarily exercised by a probate judge, who, in many of the states, is not required to be a lawyer. The Legislature is to provide the procedure of the clerk in exercising such power. In other words, the clerk would do all detail work that is usually done by a probate judge and be a kind of probate commissioner to the district judge under rules and regulations prescribed by the Legislature.

At the present time probate matters may be appealed from the county court to the district court and from the district court to the Supreme court. This amendment removes all this circuitous machinery and duplication of expense. Contested probate proceedings, under this amendment, should be placed on the trial probate docket, but probate matters that were not contested, where no protest had been filed, and the Legislature ought to provide liberal procedure for filing protests, exceptions and objections, would be handled by the clerk, subject to the disapproval of the district judge at any time. A technical or narrow procedure should not be provided, but the Legislature should provide a simple pro