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power but the mere promulgation of regulations or decisions. In Ohio, even the staff, which collects the data upon which the commission makes its decisions is accountable not to the commission but to the director of another department who is politically responsible to the governor. But the commission, and not the political director of the other department, is responsible for the rules and decisions issued. All value accruing from the commission's independence is thus virtually destroyed. This seems to be carrying the dogma of responsibility to the ridiculous. At least it is carrying it to the extent of defeating the end of the commission's creation, violating the logical principle of functional unity, and hence abdicating efficiency and

economy.

The morale of the personnel is distinctly lowered under the new codes. Few capable technologists are willing to enter the public service under political administrations. Indeed, experts, who head state departments by virtue of their appointment by non-political boards, have declared that they would resign at once if they were to be appointed by the governor. The lack of independence, honor, and respect connected with political service, the uncertainty of tenure, the acquiesence in an atmosphere of chicanery, partisanship, and favoritism are elements repulsive to the well trained and highly skilled administrators proud of their professions. Experts, who might possibly be employed in less important positions, would be subordinated to incompetent chiefs. This is of necessity the case because the department heads and bureau chiefs under the new codes are supposed to be appointed on a political basis. The issue between political administration and competent administration is clear. Do we want professional technicians or professional politicians operating our health, welfare, educational, and other services? That the federal plan for states gives the latter, there is little question.

In resume, the movement to reorganize the states on basis of the federal plan makes distinct advances in the elimination of overlapping jurisdiction and duplication of effort, in the reduction of overhead costs and routine clerical and field forces through the functional arrangement of organization units, and in the institution of the budget system and standardized methods of administration. But the defects of the movement should not be overlooked. It violates the foundation principles of representative government; oversimplifies the problem of administration, and overcentralizes the jurisdiction and powers of the governor beyond the means of human capacity; fails to make him appreciative of his administrative leadership; fails to make him apprehensive of his responsibilities to the "people"; overburdens the electorate with duties for which it is unfitted; destroys boards with powers of publicity and investigation which are essential to popular government and the proper functioning of public opinion; poisons the whole administrative system at its most vital points with the spirit of the political spoilsman; weakens and at times retards the civil service reform movement; disrupts functional unity by arbitrarily separating quasi-legislative and quasi-judicial from administrative acts; increases the turnover of employees and department heads; expels the technologist and replaces him with the politician; creates such an administrative system that a trained executive would seldom if ever accept an appointment even if offered by the governor,

48 Coker, Op. Cit., XVI, 407.

owing to the very temporary character of the office and the undesirable political atmosphere in which he would have to acquiesce.

In weighing the failures and successes of the reorganization movement, we are led to conclude that the movement has failed to accomplish its chief objectives. So far from achieving its goal of responsible government, it has actually destroyed the advances previously made by the movement to take certain state services out of "politics" and to secure competency and continuity of administration.

Dakota Law Review

Published in January, April, July and October by the North Dakota University School of Law, in Cooperation with the State Bar Association

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COMMENTS

THE JUDICIAL COUNCIL ACT

One of the most immediate problems facing the legal profession is that of more effective judicial administration. Few will dispute the proposition that our courts are impeded by heavy and onerous procedural details, with the result that their work is often tediously delayed, inefficiently performed and expensively conducted. Many legal thinkers of high repute insist that the chief reason for this is the want of power by the courts to free themselves from the fetters of codes of procedure imposed by legislative enthusiasm.1

In some states, legislative restriction upon the courts in procedural matters is guarded against by insuring to the judiciary the rule-making power by constitutional provisions. The efficacy of such provisions is witnessed by the decrease in delay of court work and the elimination of many unwieldly handicaps of the statutes. It is insisted by some that no constitutional problem of separation of powers is actually involved in this question, but some states have deemed constitutional amendment necessary to confer the power to make rules of procedure upon the courts."

The judicial council act passed by the legislature of North Dakota in 1927 is a gratifying step to relieve the courts of the burdens of procedural difficulties. The act varies from the model judicial council act submitted by the American Judicature Society' in that the rulemaking power is not included. Thus the judicial council acts primarily in an advisory capacity, so far as actual reform in procedure is concerned. Its duties are "to make a continuous study of the organization, rules and methods of procedure and practice of the judicial system of the state, of the work accomplished and of the work produced by the system, and its various parts, to the end that procedure may be simplified, business expedited and justice better administered." Just how this is to be done is indicated by the requirement that the council is to "submit to the governor . . . each even numbered year a report upon the work of the various branches of the judicial system of the state," together with the provision that "the councial may recommend to the governor or to the legislative assembly such measures as it shall deem advisable and may from time to time submit for the consideration of the supreme court suggestions regarding rules of practice and procedure."

That the council is something more than a mere figurehead is assured by the provisions for compulsory processes for obtaining witnesses and evidence at its hearings, and that it is intended to be a serious undertaking is indicated by the creation in the act itself of the bureau of statistics for the purpose of gathering and preserving information relative to crime, criminal prosecutions and civil litigation.10

See Pound, Rule-Making Power of the Courts, 12 AM. B. ASS. J., 599 (1926).

2 For example, the Constitution of Michigan, Art. VII, sec. 5.

See, eg., Judge Webster, in 10 J. OF THE AM. JUD. SOC., 148, (1927).
See Pound, supra.

See Judge Paul, in 10 J. OF THE AM. JUD. SOC., 78 (1927).

See 6 J. OF THE AM. JUD. SOC. 102 (1922).

Judicial Council Act, sec. 5.

Ibid, Sec. 8.

Ibid, Sec. 6.

10 Ibid, Sec. 7.

The council is composed of the chief justice who acts as chairman, all judges of the supreme and district courts of the state, one county court judge chosen by the supreme court, the attorney general, the dean of the law school of the state university, the chairman of the judiciary committee of the senate, the chairman of the judiciary committee of the house of representatives, and five members of the bar who are engaged in the practice of law, to be selected by the executive committee of the state bar association.

Both the bar and the legislature of the state are to be congratulated on the passage of the judicial council act for three reasons. First, it is a distinct move toward the solution of the vexing problem of simplifying and correcting the procedural methods which so encumber the courts; second, it is an active step toward bringing the judicial department of government into closer relationship with the executive and legislative branches of the government in the working out of a more perfect administration of justice and law enforcement; third, it is a provision for the systematic and scientific study of a legal problem, to the end that by constant research and observation, results may be obtained which are predicated upon a basis of fact and data acquired from experience, rather than experiments based upon the mere speculation and unfounded idealism of the professional reformer.

FOWLER V. HARPER.

JOINT ENTERPRISE

Defendant was taking a fellow bank employee to a neighboring town in his car. Both men intended to aid in starting a suit for the collection of one of the bank's notes. The car overturned. Held, that since there was no "community of interest in the objects and purposes of the undertaking" nor any "equal right to govern the movements and conduct of each other in respect thereto," the pair was not engaged in joint enterprise.1

Among the cases cited by the court Lochead v. Jenson' and Cunningham v. Thief River Falls,' rule that the host-guest relationship does not constitute joint enterprise; Brubaker v. Iowa County' rules that a husband and wife moving to another town with their auto loaded with household goods are not engaged in a common enterprise; Kysler v. Chi., St. P. M. & O. R. R. holds similarly as to one taking a family guest to town to mail a letter. In Alabama, however, a joint enterprise was found where two garage men were engaged in driving a new car to a dealer.

The host-guest relationship is generally not sufficient to constitute a joint enterprise. Thus joint enterprise does not exist where a private autoist is taking a group of friends on a picnic. The negligence of the driver cannot be imputed to the passenger where that

1 Jessup v. Davis, 211 N. W. 190 (Neb. 1926).

42 Utah 99, 123 Pac. 347.

84 Minn. 21, 86 N. W. 763.

174 Wis. 574, 188 N. W. 690.

111 Neb. 273, 196 N. W. 161.

Crescent Motor Co. v. Stone, 211, Ala. 516, 101 So. 49.

Eads v. Tiede, 45 S. D. 190, 186 N. W. 825; Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855; Koplitz v. St. Paul, 86 Minn. 373, 90 N. W. 794; Nesbit v. Garner, 75 Iowa 314, 39 N. W. 516.

343

Ameniat Sharon Land Co. v. M. St. P. & S. S. M. R. R., 48 N. D. 1306, 189 N. W.

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