NOTE. Any discrepancy that may occur in the above figures, may be accounted for by causes that were settled in vacation, and, therefore, did not go on the Docket for trial at the next term. [THURSDAY, President Constitutional Convention of Ohio DEAR SIR: I am directed by an unanimous vote of the Board of Officers of the Young Men's Mercantile Library Association to tender, through you, to the members of the Constitutional Convention of Ohio, a cordial invitation to avail themselves of the use and advantage o! the Library, during the session of the Convention in this city. The accompanying complimentary cards will entitle the members of the Convention to the privileges of the Library and Reading Room, at all times, between the hours of The variety and completeness of the collection of books of reference in the Library, and the literature filed in the Reading Room will, it is hoped, be found of sufficient utility and interest, to secure to the Association the honor of a liberal patronage by the members of the Convention. Very respectfully yours, eight o'clock A. M. and ten o'clock P. M. Н. Н. ТАТЕМ, Corresponding Secretary. Which was referred to the Committee on Privileges and Elections. On motion of Mr. HITCHCOCK, AFTERNOON SESSION. The Convention re-assembled at 2.30 P. M. Mr. TOWNSEND. I move that the Convention resolve itself into Committee of the Whole upon the order of the hour. The motion was agreed to. So the Convention, as in Committee of the Whole, Mr. HITCHCOCK in the Chair, resumed the consideration of the Article reported from the Committee on the Judicial Department. The CHAIRMAN. When the Committee rose it had under consideration Proposition No. 185, the question being upon the motion of the gentleman from Marion [Mr. SCOFIELD], to strike from line one, section six, the word "six," and insert the word "eight," so that that portion of the section, if amended, will read: "The State shall be divided into eight judicial circuits." instead of six, as now provided. Mr. HOADLY. As this is a matter which has not been under debate for a long time, and was passed over in order that we might take up the subject disposed of this morning, I think that, at the risk of being thought to have spoken too often, I shall call the attention of the Committee to a consideration or two, which, in my mind, weigh in opposition to the proposition of the gentleman from Marion [Mr. SCOFIELD]. It is not prudent for us, Mr. Chairman, to begin by loading down our Constitution by creating too many office-holders. The difference between six circuits and eight circuits means six judges to be paid salaries. If six circuits are not sufficient, there is a provision by which the number can be enlarged. But if eight circuits prove too many, while it is true the Legislature may diminish the number, the practical work of diminishing is a very different thing from the practical work of enlargement. Everybody knows that if the public interest demands an enlargement of the judicial force, it is much easier to procure such legislation than it is, where too many judges are on the bench, to VOL. II-6 bring about a diminution. The statistics which were brought before the Convention last sumthere have been, for many years, more judges mer show that, in a large portion of the State, on the common pleas bench than work proportionate to their labors with which to employ them, and yet we have not even heard of the reduction of the judicial force in any part of the State. I remember the abolition of the criminal court in this county; but with the exception of that legislative act, which was the result of our having chosen an unpopular judge, I do not remember, at this moment, of any other diminution of the judicial force since the present Constitution of Ohio was adopted. And yet the statistics show that, in some subdivisions, judges are not employed more than onethird of their time. I respectfully submit, that we had better begin with too few judges than too many. If we have too many, we enlist the men who are elected in labor, that they be not deprived of their offices, and I submit that it will be easy enough, if it turn out on experiment that six circuits are not sufficient-it will be easy enough for the Legislature to increase the number; whereas, it may turn out, on experiment, that six circuits are enough, and that the number should not be enlarged. Mr. SCOFIELD. I hope the Committee will not pass this amendment over without due conconsideration. It was submitted by me when this matter was under consideration in Columbus, after considerable reflection. If this circuit court is to be made a court of any practical usefulness, it is necessary that we should have a sufficient number of judges, at least, to make it practically useful. One of the objections which I urged then, and which I now repeat, to this proposition for six districts, is, that it makes an inequitable distribution of the judicial force in the circuit court. Take the county of Hamilton, with a population, at the last census, of 260,370. To that county, by this section, as it now stands, is given one of these courts. It is made a circuit within itself; while to counterbalance the State with a population of two million six hundred and sixty-five thousand two hundred and sixty, to be divided into five districts, giving to each of these five districts a population of more than twice the number of the district of Hamilton county. It will leave in these districts seventeen and two-fifths counties to be taken care of by this circuit court in each district; and I submit to this Convention whether this court will be a practical or a useful court, whether they can dispose of seventeen counties of the State with a population double that of Hamilton county? Besides that, the Committee ought to take into consideration the fact that, in addition to the court of common pleas, with the increased force greater than that of the other districts throughout the State, the county of Hamilton has a superior court, which these other counties and these other districts do not have. I, therefore, say there is an insufficient force and an insufficient number of judges provided for in the section creating this circuit court, in order to supply the demands of the people and dispose of their business. Mr. HOADLY. Is the gentleman not aware SCOFIELD, LAYTON, KING, HOADLY, OKEY. that as the frame of the judicial article is proposed, the superior court will be making grist for the circuit court as well as the court of common pleas? It is not proposed that the superior court shall be a court of error, but the circuit court shall dispose of all cases appealed from the superior court as well as from the court of common pleas. Mr. SCOFIELD. That is very true; but it does not do away with the fact that I have already stated, that the county of Hamilton has this superior court in addition to these other courts, and it has not a proportionate population, and it has not, also, by the certificate as furnished by the clerk of these courts, the business commensurate with the force asked for in this proposition. It is not equitable. The force in the other five districts will be insufficient. The six courts, as provided, will be of no consequence to the people. They cannot dispose of the business. It will be a useless court-more impracticable, in my judgment, than the old district court, which is held, universally, to be a useless expenditure of time and money, and a worthless court. [THURSDAY, thereby, that Hamilton county is made a separate circuit, it is only one-sixth of the judicial business of this State, and more is transacted in this county. The gentleman from Logan [Mr. WEST] informed us, I think, that one-fourth, or fifth, at any rate, of the business in the supreme court has gone up from this county. This, of course, to some extent, measures the business in the district or circuit court. In the next place, remembering that the division of the circuits is with reference to the selec tion of the judges, and not as the field of their services, and that the three judges who are to be elected in Hamilton county will, therefore, be at the service of the whole State, I submit that the eighteen judges so to be obtained can do all the circuit court business of the State of Ohio, if that court shall not be broken down with jury trials on appeals. Mr. HOADLY. Is not the court really so organized, according to the Article, that nine courts may be held at the same time? Mr. KING. I was coming directly to that point. These circuits each elect three judges. We thus have eighteen judges, and, as I have I, therefore, ask the attention of the Commit- stated, eighteen judges are amply sufficient to tee to these statistics. We have conceded to the do all the appellate business proper of the circounty of Hamilton, and other large counties, cuit courts, for the reason that but two judges all that they desire in judicial force. I still en- are made necessary for a quorum, although tertain the same views as I did before in regard three is the full number provided for the court to the probate court. I believe it to be a dan- by the report. It will be seen by the phrasegerous court, and I believe it to be, in many re-ology of the section, that in case of a pressure spects, a useless one. I believe it to be very of business, it will be competent for the Geneexpensive, and I think there is a growing feel-ral Assembly to so provide that "more than one ing among the masses of the people, throughout the State, especially those who have had business to do in that court, against its utility; and, when the proper time comes, I shall insist on doing away with the probate court, and so, in lieu, provide a county court, which will embody the jurisdiction which is now given to the probate court. Mr. LAYTON. The gentleman has not had enough of that fight! Mr. SCOFIELD. I have had very little to say upon that question; but as it is not properly before the Committee, I propose to discuss it when it comes up in a better shape. I trust that the Committee will look at this amendment in its proper light, and consider whether six districts will be sufficient, or whether such a court will be a practical one. Mr. KING. The gentleman from Marion [Mr. SCOFIELD] has fallen into an error, a double error, as I think, in supposing that the circuits are divided in respect to the population, and in supposing that the judges elected in each circuit will be confined in their labors to their circuit. The fact is, that this division of the State into six circuits is based upon the business of the circuits, rather than upon population, which is obviously the proper criterion for the distribution of the judicial force conducting them. The circuits are intended chiefly with reference to the election of judges. The State is to be divided into six circuits, each electing three judges, according to a division based upon the proportion of business done in the circuits, respectively. The judges are then to be allotted to service anywhere throughout the State, as will be seen, without respect to the circuit in which they are elected. If it does so happen, court or sitting thereof, consisting of two judges, may be held at the same time, in the same circuit." The judges may divide and be put "double-teamed," so to speak, on the same circuit. The result will be, as my colleague [Mr. HOADLY] has just suggested, that we may provide, out of the eighteen judges, in a case of necessity, for nine courts, holding their sessions at the same time. I submit, also, that the other consideration which has been presented by my colleague [Mr. HOADLY], that it is better to begin rather with a smaller force than one in excess, should have the more weight and consideration, because, although, as will be seen by referring to section twelve, it is provided, as he has said, that the General Assembly may increase or diminish the number; yet the difficulty of diminishing is made still greater, from the fact that no such addition or diminution shall vacate the office of any judge. Thus it would become practically impossible, except very far ahead and after much delay, to make any diminution. I hope, therefore, the Committee will adhere to the number of circuits, (six) as now fixed in the Report. I believe that eighteen judges will be found amply competent for the transaction of all the appellate business, at any rate, until such time as the Legislature may, in its wisdom, or unwisdom, adopt the idea of burdening this court with jury trials. The question being upon the motion of Mr. SCOFIELD, to strike out "six" and insert "eight," The same was not agreed to. Mr. OKEY. I have a substitute for sections six and seven, which I desire to offer. The CHAIRMAN. The gentleman from Mon DECEMBER 4, 1873.] OKEY, POWELL, MULLEN, HALE, BABER, BEER, ETC. roe [Mr. OKEY] moves to strike out sections six and seven, and insert in the place thereof the following: "SECTION 6. The State shall be divided into five cireuit for circuit court purposes; in each circuit there shall be elected at least three judges of the circuit court, in such manner as may be provided in this article. The circuit judges shall hold their offices for the term of five years. They shall receive such compensation as may be prescribed by law, which shall not be increased nor diminished during their term of office. The several circuits, except the circuit composed in part of Hamilton county, shall be subdivided into three circuits, in each of which there shall be elected one judge of the circuit court, who shall reside in such subdivision. The court shall be holden, by one of the judges of the circuit court, twice a year in each county in the State, at such times as the circuit judges of the circuit may from time to time prescribe. "SEC. 7. The circuit court shall have like original jurisdiction with the supreme court, and such appellate jurisdiction from the court of common pleas, in matters of law and fact, in one or more counties of the State, and such other jurisdiction as may be provided by law. There shall be holden in each circuit, by three of the circuit judges, one a year, at such places in the circuit as the judges may designate, a general term of the circuit court, in which shall be heard and determined al questions of law that may be reserved by the several judges of the circuit court, for deci-ion at general term. No business shall be done at the general term, except to hear, determine, and certify back such questions of law as may have been reserved to general term by the judges of the circuit. tfix the time for holding the circuit and common pleas courts in the circuit, and to make rules for the government of the courts therein." Mr. POWELL. I think it would be well if that matter be read again. It is new and pretty radical, and, upon casual reading, I think memhers will not be prepared to vote upon it. It strikes me pretty favorably, but I would like to understand it better than I do now. Mr. OKEY. Upon consultation, I shall withdraw that as an amendment, and offer it as a Proposition, and I ask that it be laid upon the table and printed. The Proposition was laid upon the table, to be printed. The CHAIRMAN. If there are no further amendments to section six, the attention of the Committee is called to section eight. Mr. MULLEN. I move to amend section six, by striking out "eight," and inserting "five,” in the ninth line. Mr. HALE. I would inquire if that amendment has not already been made in the Committee of the Whole? Mr. MULLEN. No, sir; it was as to the supreme judges, according to my recollection. Mr. HALE. My recollection is, that the same motion has been decided in this Committee. Mr. BABER. My recollection of the motion is, that it was a motion to strike out " eight, and insert "seven." I think, perhaps, I made the motion myself. It was to insert seven, and I think a division was called upon the question of striking out, and the Committee refused so to do. I think such was the case. It was an affirmation of the section in the shape it now stands. That is my recollection, and I think I made the motion. Mr. HALE. That is precisely my recollection of it. Mr. GRISWOLD. We refused to strike out. The CHAIRMAN. The Chair finds no memorandum of such a motion. He will, therefore, entertain the motion of the gentleman from Adams, [Mr. MULLEN]. Mr. TOWNSEND. I call for a division upon the question of striking out. The CHAIRMAN. The gentleman from Adams, [Mr. MULLEN], moves to strike out from the ninth line of the eighth section, the word "eight," and insert the word "five." The question will first be taken upon striking out. Mr. BEER. I can state to the Committee in a word, why the eighth section was presented in its present form. It was considered by the Committee that the Convention would adopt a plan for biennial elections, and for the reason that, perhaps, there would be an election only once in two years, saving the expense of one election, it was thought best to fix the term at eight years, a different term for that of the court of common pleas and circuit court. Mr. MULLEN. I have been unable, so far, to hear any good reason why the term of the circuit judges should be extended from five to eight years. Five years, either for the judges of the superior or circuit court, is abundant time, in my judgment, for either position, and as I have on previous occasions remarked, in the light of investigation, and from what I have hear, read, and talked of, relative to the formation of a judiciary article, I have heard from no section of the country a desire to increase the term of either the superior or circuit court judges. Five years, I think, is abundant time for a man to be an officer. If he is a good judge, he can be re-elected. If he is an inferior judge, five years is far too long a time for him to hold office, and I see no reason why the time should be extended to eight years. I am in favor of having frequent elections. Let the officers and men in official position be reminded that the day of judgment is at hand. Let them regard the position with the understanding that they may be turned out, or retained in office, as the people may desire. Upon the motion to strike out the word "eight" and insert the word "five," a division was called for, and being had, resulted—affirmative 23, negative 40. So the motion was not agreed to. Mr. SCOFIELD. I offer the following amendment to section six, striking out from lines one and two these words: "of which the county of Hamilton shall constitute one." In this section, as it now stands, we are giving to Hamilton county, for the circuit court, one hundred and thirteen working days, and to the other seventy-seven counties, if we make a proper division, three days and a fraction. If the circuit court is to be held twice a year, it will give less than two days to each of the other seventy-seven counties of the State. I would like, if some gentleman of the Convention who is better at mathematics than I am, to show me how a court would be of any utility to these counties, having less than two days in which to hold court? Mr. HERRON. In reply to the gentleman from Marion, [Mr. SCOFIELD], I will simply state this, that I suppose the distribution of business among the different counties is to be governed as much by the amount of business as by the population of the different counties. Now, according to the statistics which have been furnished to this Convention, the number of actions brought in the district courts of the State, so far as reported, was, for 1872, nine hundred and eighteen. Eight or ten counties HERRON, SCOFIELD, HALE, HOADLY. did not report, and, allowing a proper number for those counties which have not reported, you must add about forty to that number. The gentlemen of the Convention must remember that in addition to the district court of Hamilton county heretofore, we have had the general term of the superior court, and in that general term there has been about the same amount of business done, the same number of suits brought, that there is in the district court. Add, then, to the number of suits brought in the district courts, ninety-seven, for suits brought in the general term of the superior court, and the entire number of cases brought in 1872, which will come within the jurisdiction of the new circuit court is, ten hundred and fifty-nine, and of this number one hundred and ninety-four were brought in Hamilton county. More than one-sixth, then, of the suits brought in the district courts of the State of Ohio were brought in Hamilton county. That is the reason why Hamilton is entitled to a separate district court, because it has one-sixth of the whole number of cases which will be brought into that court; and I may add, that those cases required a larger amount of time than the suits generally brought in the district courts in other counties. In addition to that, I will say that so far as time is concerned, much more than one-sixth of the time of the district courts of the State has been occupied in Hamilton county. The arrangement proposed by the Committee, furnished to the other counties of the State more than three times the amount of the judicial force for the circuit court that is provided under the present Constitution for the District Court. During the year 1872 there were but three hundred and forty four days allowed for district court duty in the entire State. That was the time spent during the year 1872, in district court duty. Under the plan proposed by the present Committee, five circuits are allowed, and allowing them two hundred days to the circuit, and I suppose no gentleman will contend that the judge is not able to hold court two hundred days in a year, it will give to all the courts in the State twelve hundred days' duty, while in 1872, they have had but about three hundred and fifty. It does seem to me that the Committee has allowed ample time, and in allowing that time, Hamilton county is entitled, by the amount of business pending in her court, to one circuit out of six. [THURSDAY, Mr. HALE. The gentleman from Marion [Mr. ScOFIELD] says there will be less than two days. If we have five circuits, it would give seventeen and one-half counties to a circuit; if you have two days to a county, you would have thirty five days of court. The truth about it is, if we have five circuits, you can have about twelve days, with the judges working about two hundred days each. Mr. SCOFIELD. How do you propose to hold the court? Mr. HALE. Three judges to hold court. Mr. SCOFIELD. If you will take three hundred working days in a year and divide that by seventy-seven, you will get the number of days these judges can devote to each county. Mr. HALE. But you have five circuits. Mr. HERRON. There are fifteen judges. Mr. SCOFIELD. I know there are fifteen judges. The CHAIRMAN. The Chair can only allow these interruptions by the consent of the gentleman from Hamilton [Mr. HERRON]. The gentleman's time is nearly up. Mr. HERRON. I was only going to say that instead of three hundred and fifty days, according to the plan proposed by this Committee, there will be over one thousand days, and there being eighty odd counties, there will be twelve working days to each county. Mr. HOADLY. Whether two hundred days is not a great deal too little; whether the judges of the circuit ought not to be expected to work more than two hundred days? Mr. HERRON. No; I think not. Twentyfive days in a month and eight months in a year, is about as much time, I think, as a judge of the circuit court should devote to work. Mr. HALE. I simply wish to reiterate what was embodied in the question I put to the gentleman from Hamilton. If there are five circuits outside of Hamilton county, it would give seventeen and two-fifths counties to a circuitwe will say seventeen and one-half counties to a circuit. If there be held but two days, in each of these counties, the total number of days in the circuit would be thirty-five. If we give ten days to each of these counties, the three judges would work one hundred and seventyfive days each. If they work two hundred days each, they may hold court in each circuit, outside Hamilton county, about twelve days, and that is more time than the district courts are now in session. Again, suppose that two judges constituting a quorum, shall hold court instead of three; they may increase the time of the court onethird; and my judgment is, that the force here provided for is ample. Mr. SCOFIELD. Conceding all that the gentleman argues in favor of Hamilton and its business, I will also ask him whether less than two days is sufficient for each of the other counties throughout the State for the circuit courts-whether they can dispose of their business? Suppose they have not more than five Mr. HOADLY. Suppose the judges of the or ten cases to go up, and under the contem- circuit court, Judge Frease or Judge Gilmore, plated system proposed by the Judiciary Com- or some other judges who hold long terms dumittee, it is expected that a great deal more ring the year, of two hundred and forty days, business will go into the circuit court than more than nine months instead of eight months would have gone into the supreme court, II will ask the gentleman how much it would ask him if that can be disposed of in less than two days in these other counties? Mr. HERRON. I do not understand how the gentleman obtained his figures. Mr. HALE. Will the gentleman allow me to ask a question? Mr. HERRON. Certainly. allow in each county? Would it not run it up to nearly twenty days? Mr. HALE. You may, by all the judges holding court and working the number of days a good healthy man ought to work, increase the time of holding the circuit court in each circuit to twenty days at least. |