Therefore, I move a reconsideration of the vote upon the report on that resolution; and, if my motion carries, I will move to lay the resolution on the table.

The Chairman:

Did the gentleman vote with the majority on that resolution? Everett P. Wheeler, of New York:

I arose intending to debate it, but not catching the eye of the Chairman, I voted with the majority.

The Chairman:

Is the motion to reconsider seconded?

The motion to reconsider was then seconded.

W. A. Ketcham, of Indiana:

I would like to have the resolution read.

The resolution was as follows:

Resolved, That the President appoint one member from each state to co-operate with its Standing Committee in the matter of a re-hearing in the case of Slocum vs. New York Life Insurance Company, now pending in the Supreme Court of the United States."

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The Chairman:

The motion is to reconsider the vote adopting the report of the Executive Committee in respect of that resolution.

W. A. Ketcham, of Indiana:

I think the action of the Executive Committee should stand. I do not believe the American Bar Association should undertake to instruct the Supreme Court of the United States with respect to its duties. It may well be if there is a question of profound importance and the New York Life Insurance Company is a party to the case, that it will be quite important to have a different decision, but it is my judgment that the New York Life Insurance Company, if it is a party to the litigation, may be relied upon to give the Supreme Court sufficient reason for a retraction of its action. I do not believe that under the guise of settling a constitutional question, correctly or incorrectly, the

American Bar Association ought to permit itself to be used in furtherance or in aid of any litigation between private parties.

Everett P. Wheeler, of New York:

I wish it distinctly understood just how this question came up, and what this special committee felt itself called upon to do. The question in that case was whether or not a statute of Pennsylvania providing for the rendition of final judgment by a court on appeal was or was not in violation of the Seventh Amendment to the Constitution of the United States. The question was not in the record; it was not argued by counsel. It was raised by the court, and the opinion of the court was adverse to the Pennsylvania statute. When the committee saw the possible effect of the decision upon bills which this Association had recommended, which had passed the House of Representatives three times and which had been expressly recommended to Congress by President Taft in so many words in his annual message, the committee felt it to be its duty-not in the interest of litigants, for it was nothing to them, because a decision on the merits was placed upon grounds which were fatal to the right of the plaintiff to recover-to put in a brief pointing out decisions which appeared to the committee to require a different result. That brief has been printed and copies have been sent to every member of the Association, and the voice of the Association, so far as it has been reported to this committee, has been unanimously in the affirmative, and the report was adopted this morning. We ought not tonight to put on record anything which would condemn the action of the committee in filing that brief in the Supreme Court.

W. A. Ketcham, of Indiana:

What was that Pennsylvania statute?

Everett P. Wheeler, of New York:

It authorized any appellate court to render a final judgment. upon the merits, in actions tried by jury, instead of ordering new trial.

I do not want the resolution adopted that was moved by the gentleman from Wisconsin. If the motion to reconsider is

carried, I will move to lay that resolution on the table; because what we have done we have every reason to believe has accomplished the result we sought, which was to show to the court decisions which the court had not considered and which sustained the validity of the act that this Association has three times recommended. Certainly in such a case this Association should be heard. It was not private litigation. The question involved had nothing to do in fact with the interest of the plaintiff or of the defendant. It is because our courts in constitutional questions render judgments and sometimes give reasons which extend far beyond the particular litigation that this matter is of such great importance. If we are ever to support that power which we all believe should exist in the court to annul statutes in violation of the constitution, if we are going to support that under existing conditions, it is absolutely necessary that the court which is to render the final decision should have the assistance of the Bar. It had no assistance in the Slocum case. The constitutional point was not mentioned in the assignment of error; it did not appear on the record, but it was taken up by the court and we felt that it was our duty, in the discharge of the obligation that you had put upon us to get these bills through, to represent to the court that the bill in the form in which this Association had approved it was not a violation of the Constitution of the United States. We pointed out the distinction that if points of law were reserved upon a trial by jury it was competent for the court in banc or for the Appellate Court, at common law, either to non-suit or to render judgment according to its view of the law.

George Whitelock, of Maryland:

I do not wish to criticise here-certainly not in advance of an opportunity to examine the report the action of the special committee which has undertaken to file a petition for re-hearing in the Supreme Court of the United States on behalf of the American Bar Association in Slocum vs. New York Life Insurance Company. In my judgment the action of the Executive Committee today was entirely correct. Being a member of that com

mittee, I voted with every other member thereof in favor of the report submitted on its behalf. But in view of the extreme importance of the matter which we are now discussing, I move that the motion of the gentleman from New York to reconsider the action supporting the report of the Executive Committee be deferred for further consideration until tomorrow morning.

W. A. Ketcham, of Indiana:

I second that motion.

The motion to defer was carried.

Adjourned to Wednesday, September 3, at 10 A. M.


Wednesday, September 3, 1913, 10 A. M.

The President:

The Association will come to order and give attention to announcements by the Secretary.

The Secretary:

Since adjournment last night the Committee on Obituaries has been advised of the deaths of several members of the Association during the past year, and therefore on behalf of the committee I ask leave to amend the report heretofore made by the insertion of the additional names.

The President:

The leave requested will, of course, be granted, and the report be amended accordingly.

The Secretary:

The resolution offered yesterday by John H. Wigmore, of Illinois, and referred to the Executive Committee has received its attention. On behalf of the committee, I report the resolution, with some slight modifications which the committee is advised are quite acceptable to Mr. Wigmore. It now reads:

"Resolved, That a special committee of five members be appointed by the President of the Association to consider and report to the Executive Committee what amendments to the Constitu

tion and By-laws would be desirable with a view to improving the order of business of the Association, and extending its influence in the profession and in the community at large."

In behalf of the committee I move its adoption.

The resolution was carried.

The Secretary:

Members of the Association have been advised of the invitation extended to the Chief Judges of the various states and Federal Courts of Appeals to attend this meeting, and particularly to attend the conference called by the Committee on Uniform Procedure. It has been deemed desirable as an outgrowth of the conference to constitute a Section of the Association to be known as the Judicial Section. This resolution is therefore submitted:

"Resolved, That the By-laws of the American Bar Association be and they are hereby amended by adding thereto an additional By-law to be known as By-law 17 and to provide for the establishment of a Section of this Association to be known as the Judicial Section, which shall meet annually with the meeting of the American Bar Association, but not during such hours as the Association is in session, and whose organization, objects and powers shall be fixed and defined by the By-law in such terms as the Executive Committee may approve."

I may say that the arrangement is exactly that pursued in other instances, except in mere matter of detail about the By-law.

Jacob M. Dickinson, of Tennessee:

I move the adoption of the resolution.

The motion was then carried and the resolution adopted.

The President:

The proceedings this morning will consist of a symposium on the general topic "The Struggle for Simplification of Legal Procedure." The first speaker will be Hon. William C. Hook, of Kansas, Judge of the Federal Circuit Court of Appeals of the Eighth Circuit, whom I now have the pleasure of presenting.

(Judge Hook then delivered an address on "Some Causes," see Appendix, page 436.)

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