and certify a proper statement of facts."

(The word "proper" here used refers to the accuracy and completeness of the statement of testimony produced, and not to the proceed ings leading up to its filing in court).

But to continue the argument further, one may fairly ask, If the judge by statute possesses the jurisdiction or authority to certify that the statement of the testimony is complete and correct, notwithstanding failure to do the certain formal things mentioned; and if the litigant by statute possesses the right to appeal from the judgment of the trial court; why could it possibly be "a usurpation of power for the Supreme court to entertain the appeal" in the case referred to? Just what was the matter with the Court rendering that opinion I will beg the indulgence of the reader to determine. I cannot ask excuse for

it.

(and subsequent to the decision in volume 45)

are

About four years ago the Washington Supreme Court was enlarged to nine justices; and with this change all regular cases heard in departments of five judges. each presided over by the chief justice. I do not know that the decision of the court in the half dozen cases already referred to has been lately ratified by the whole court sitting en bane upon argument by counsel for both sides, but the same decision has been rendered by departments on several occasions since the year 1911. Passing others, I will refer to a similar decision by a department in the year 1914, entitled Michaelson vs. Overmeyer, which is published in volume 77 at page 110 of the state reports. Refer, also, to Austin vs Petrovisky, decided in November, 1914.

Here the department reaffirmed its

will in the former decisions claiming that this statute unconditionally required a notice to the opposing counsel of the fact and time of application for the order for an extension of time to file the statement of testimony and that failure to do so deprived the court of jurisdiction to consider the case upon its merits. Strange, it seemed. In order, apparently, to still further fortify their position, the department referred to a new statute passed by the legislature of 1913, the subject of which is "Abstracts of the Statement of Testimony," and requiring an abstract of all evidence on any question to be reviewed by the Appellate Court in every case. In connection with one of the sections of this new statute these words are utilized:

"Nothing in this act contained shall alter in any respect the present manner of settling and certifying a statement of facts."

The court held that these words still further strengthened their decisions.

Let us inquire into the meaning and intention of these twenty-one words.

They do not justify the alleged meaning that the present manner of settling and certifying a statement of the testimony shall not be altered, because it says that nothing in the "abstract" act shall alter it. Therefore, if nothing in that act alters it, the act in the now familiar statute, 393, is not amended or altered in any particular whatsoever. So far as I can find from an examination of that act, there is not a word or a line which attempts to amend the 393 statute, and the Court does not attempt to point out even one particular instance where the "abstract" act alters the latter statute.

The legislature in the 1913 act simply confined itself to legislation concerning the abstracting of the evidence in the statement for the convenient use of the Appellate justices, and did not wish that any words in

it should be taken as amending the 393 statute. Furthermore, the 21 words in the "abstract" statute refers only to the manner of settling and certifying a statement of facts, and the question arising in the case reported in volume 77, was not concerning that matter, but concerning failure to give notice to the opposing counsel of the time when application would be made to the trial court for the order to extend the time to file the statement, and these two matters are not the same thing at all. There is no justification for using a statute governing one subject to apply to a question which the statute does not refer to. In actual practice, as well as by statute, the settlement and certification of a statement of testimony is a distinct and separate proceeding which may be presented to the court weeks after the filing thereof, and the procedure is by written motion prepared by the attorney for plaintiff or defendant for a hearing thereon at a certain time and place.

Practice, therefore, and the English words describing the acts of filing, performed by the judge, are two distinct and separate matters, and there is no excuse for the court to confuse them. So that we must conclude that the "abstract" of testimony statute does nothing to strengthen the erratic and incompetent, as well as disobedient, position of the justices in the abandonment of the last "104" words of the "statement of fact" statute.

By way of continued argument against these absolutely unwarranted decisions, another example is chosen among many.

The same statute (393) provides in the first few lines, "The statement of fact must be filed and served." Now, concerning this requirement the same appellate court carries its foolhardy decisions to an absurdly unreasonable point. In a case reported in volume 34 at page 410 of the reports, the court denied to one, Yandell, who

was accused of the crime of rape, and convicted in the trial court, of the right to have his trial reviewed on its merits, because his counsel served his proposed statement of the testimony produced at the trial upon the prosecuting attorney before and prior to the time he filed it with the Clerk of the Court. Notice that the statute does not require it shall be "first" filed; merely that it filed and served within a certain time. The filing and service of papers is common in actual practice, and in 99 per cent. of all cases, papers which must be filed and served are first served upon the attorney in order to obtain a written acknowledgment of service from him. upon the original paper prior to filing it in court. If "A" requires "B" to do two things within a certain time without specifying which is to be done first, such as to glaze a window and hang a door, if both things are performed, the requirements met and approved, it must be acknowledged. But the Court said in its decision as follows:

"In contemplation of law there can be no statement of facts in a case until it has been properly filed therein and no valid service of a statement can be made by copy until the original has been filed. In other words service cannot precede the filing of the statement."

And in practice this decision has for years been followed, and not the statute.

The rule has always been, and obtains at the present time, that a court is not warranted in reading into a statute a requirement which is not found there, but here it reads into the statute the word "first," when it is not even essential which act shall be performed first. The court says in its decision just quoted,-"There can be no statement of fact in a case until it has been first filed. The statute does not say so nor bear out this assertion. In practice and by (this

and) another statute (389), it is never a statement of fact when filed but merely a "proposed" statement and becomes a statement of facts only when certified by the trial judge. So that the reason given by the court is unjustified and incompetent, as well as against the statute law. Such a decision seems ridiculous, yet the Appellate Court, for no other reason than that stated, denied to a man convicted in the trial court of a serious crime and sentenced to state's prison for a term of years, the opportunity of a review of certain alleged errors occurring at his trial,-a monstrosity of injustice.

The weakness of such a decision is further shown by reference to the last "104" words of section 393, already referred to:-"No irregularity or failure to pursue the steps prescribed (filing and serving) shall affect the jurisdiction of the judge to settle and certify a proper statement of facts." So that, even if the first part of the statute directed that the document be first filed and then served, it would be unimportant according to the last 104 words of the same statute, and failure to file first would not deprive the trial judge of jurisdiction to certify so that the case might be heard upon the merits of the questions of error presented. The "104" words, now celebrated, decides all conflict in meaning with any other part of that statute, because it reveals the intention of the law makers as to the whole of the law on that subject, and the Appellate Court must blush in shame and excuse itself in vain for dismissing the Yandell appeal as well as many others.

In none of the cases referred to here does the Court justify its decision on the ground that it is bound by a former decision of the Court upon the same questions. This rule, sometimes called "Stare Decisis," was not invoked, but all these decisions have been rested by the Court for

their authority upon the statutes quoted here.

The judges of the Supreme Court of Washington have been guessing at the meaning of "Section 393" for over twenty years, and during that time the statute has not been obeyed by them. No sufficient pressure has been brought to bear upon them because not even one per cent. of the citizens of that state have been cognizant of the fact and the situation. The men informed about the matter allowed it to drift because no immediate action could be taken, and as usually happens, an important matter that cannot be attended to at once, is neglected.

But after long years, something has happened. The Washington Legislature of 1915, recognizing the irregularities of the Supreme Court, absolutely prohibited one of these practices and attempted unsatisfactorily to regulate the other. By Chapter 104 of the Laws of that year, it expressly provided that statements of the evidence and all papers required to be "filed and served" would be effective if served upon the attorney before filing. Thus the practice of striking legal papers from the court files because not filed before the service of a copy upon the opposing attorney, is prohibited.

The same Act provides concerning the matter of an order to extend the time to ninety days in which to file a Statement of the Evidence and notification to the opposing attorney of the time of the application for the order, that where there has been a failure to file, the Court may issue an order permitting such filing upon presentations of reasons therefor which the Court may find a sufficient excuse. This solution of the matter seems very inadequate, for there are no reasons in practice which will be deemed sufficient by the Court unless viewed broadly. The last "104" words of section 393 ought to be enforced to

the letter: and had the recall principle existed in Washington State with publicity of the situation, one might confidently expect the matter to be correctly disposed of long ago.

If the people understood that this discussion is much more than an academic one concerning the meaning of a statute, that it touches them here and there every day of their lives, public opinion would be aroused to action. The continued endurance of the despotic will of irresponsible justices for many years striking at the liberties of many persons accused of crime and misdemeanors, and suppressing the review of many cases involving hundreds of thousands of dollars during the last eighteen years in Washington State, is food for serious thought and action, because that despotic will was disobedient to a sovereign statute and violated an oath of office to uphold the statute law.

The Court cannot justify these decisions to a suffering people. As I look into the primal causes of such action by appellate justices, from the vantage point of a lawyer who has been upon the ground and is as familiar with the situation as a captain of industry is familiar with the affairs of his particular line, I feel that these causes are a combination of deference to the wishes of corporation and influential attorneys whose business is the defense of strong interests, and it is to the defendant that these decisions are favorable; and a lack of courage and intellectual honesty to rectify the erroneous interpretation of statutes made by their predecessors in office. Let us stand together seems to be their motto, and if we commit an error, we expect our successors in office to sustain us. Yet a large number of voters still remain upon the fence as to a belief in the desirability and necessity for the right of the power to recall a judge from office, and even go so far as to believe in the suppression of any criticism of a

court's decisions, for the reason that it is a reflection upon the dignity of the court. I think the difficulty with such voters is a lack of opportunity to obtain just such facts and information as I have here gathered together. The average newspaper editor hasn't the material, and it is only the lawyer in active practice, though dependent upon the good will of the court for a full and fair consideration of his own case, who knows what is going on within the inner circles.

If you are not persuaded that irregularities exist and have existed for years in the Courts of this country, let me ask you to look at the long continued custom of federal judges and district attorneys of suspending indefinitely either the imposition or execution of sentences upon a convicted criminal, and concerning which the present United States Attorney General Gregory recently advised his assistants throughout the country:"No court has such a power. It is in effect a pardon or commutation. Nor may a court exercise it indirectly, by a continuance of the case from term to term for sentence, or by other similar device."

Then, I ask this question,-If the power of recall with adequate means of conveying information to the people concerning irregularities at court is needed by the voters in a state where the method of elective judges is in vogue, how much more is it needful in states where the method of selection of judges is by appointment of the governor,-a creature surrounded by all kinds of personalpolitical influences, with the approval of the council, for a life term, as is the situation in Massachusetts. One predominant reason, already alluded to, ought to decide the question for the people of the Massachusetts Commonwealth, the speedier adoption of broader minded and progressive legal principles and their application to the needs of modern life by the judge of

the trial and the appellate courts. Just how much speedier is open to debate, but I would think that the time might be from a quarter to a half century.

In the old Bay State the appellate court will not permit a jury to consider a case where the evidence is already before it, involving the question of the authority of a person to act as agent for another in ordering furniture or dry goods upon testimony that the person talked with the merchant and said to him that he would talk with the principal about the order and meet him the next day, and that he did go to his principal and talk with him and returned and ordered the goods after making a particular selection,-unless the agent and principal would admit orally that the principal gave the agent such authority, which admission would of course be hostile to the principal and agent's interest. In other states where the courts are broader minded, the courts see no reason why the jury should not be the judge of the circumstances and actions of the persons alleged to be the agent and principal, and decide the case themselves. It is an exceedingly narrow view and ruling which the Massachusetts court takes when it denies to a jury the right to consider a case upon the actions of a party just the same as upon what was said between the parties.

No one knew what the principal and agent said to each other, and by suppressing what was said, easily can they escape liability and throw the plaintiff out of court. But "actions speak louder than words" is a time-tested adage and should be applied here.

Then again, in both Massachusetts and Washington State, the one glaring fault with the written decisions. of the appellate courts is the "unconscious-conscious" habit of neglecting to mention in the decision some of the important facts of some cases so that

it would read better, the flaws of the reasoning be less easily detected and to the public the decision meet unanimous approval. Ofter the knowledge of the neglected facts would lead the public to think that the court was wrong. One instance in Massachusetts is found in volume one hundred and ninety-five at page five hundred and seven.

I believe it is the consensus of opinion amongst the experienced practitioners at the bar in all the states and in all courts of justice that the neglect. to recognize important facts in a written decision is one of the greatest faults of the judiciary and one most difficult to remedy. Certainly, its existing independence would not tend to be a remedy, as is thought by exPresident Taft, a former federal judge.

I doubt if the Old Bay State Courts of justice would decree a judgment against a real estate corporation, in a mortgage foreclosure action for a deficiency, whose name did not appear upon the mortgage deeds, where it appeared that the mortgage was procured by and for the benefit of that corporation. Yet an appellate court in a state having an elective system of judges did this very thing, and I believe those states having an elective system of judges to be much broader minded in permitting a jury to decide personal injury actions of alleged negligence of the defendant. As a general rule, "Let the jury decide" is the new slogan with the elective judiciary and would be with a judiciary subject to the recall principle.

The judges in both these states, it seems, have been lax in protecting the people in the sacred right of TRIAL BY JURY in many classes of EQUITY CASES. Within the last month the Attorney General of Massachusetts has requested of the Supreme Judicial Court a jury trial in an equity case entitled The Commonwealth vs N. Y. N. H. & H. R. R., and relat