Part 91 (1/2)

15. The legislative reference bureau. (Reinsch, _Readings on American State Government_, pages 63-73.)

16. The relation of the state legislature to local government (Gettell, _Introduction to Political Science_, chapter xxii.)

17. Public forces influencing legislation. (Reinsch, _American Legislatures and Legislative Methods_, pages 275-298.)

FOR CLa.s.sROOM DISCUSSION

18. Would shortening the length of the legislative session improve the character of legislation in your state?

19. Should members of the state legislature be residents of the districts from which they are chosen, or should they be chosen on a state-wide ticket?

20. Should our state legislatures be made unicameral? (See Munro, _The Government of the United States_, pages 416-418.)

CHAPTER XLVIII

THE STATE COURTS

A. SOURCES OF LAW

602. ENGLISH COMMON LAW.--One important source of our system of jurisprudence is the English common law. This law is not found in the enactment of statutes, but consists of court decisions spread over several centuries. The common law has been defined as ”that rule of civil conduct which originated in the common wisdom and experience of society,” and which ”in time became an established custom, and has finally received judicial sanction and affirmance in the decisions of the courts of last resort.” [Footnote: W. C. Robinson, quoted in _Government and Politics in The United States_, by W. B. Guitteau, Houghton Mifflin Co., Boston, 1920.] The common law began its development in early England, and with the settlement of America was transplanted to this country. Though radically modified by American const.i.tutional and statutory enactments it still remains the basis of our legal system.

603. EQUITY.--Common law tended to become so stereotyped and so inflexible that in some cases an application of the law worked an injustice. Very early in English history this situation gave rise to a new form of jurisprudence called equity. Equity is that legal system which supplements common and statute law by aiming to secure justice where a strict application of law would work an injustice. Equity developed in England after the Norman Conquest, and, like the common law, was transferred to this country in colonial times. A distinct set of chancery or equity courts was created to administer equity in early America, but at present equity is administered by the same judges that preside over the regular state law courts. Both equitable and legal relief may be secured in one suit.

604. STATUTES.--Another important source of law is the statutes enacted by the state legislature. Most state laws relate to the structure and functions of government, but statutory enactment is also employed to regulate a few branches of private law, including princ.i.p.ally matters which affect the public at large as well as private individuals. Examples are laws relating to wills and succession to property, marriage and divorce, partners.h.i.+ps, and corporations.

The scope of the statutes is widening, and during the last half century several fields of the common law have been covered by statute.

Criminal law, criminal procedure, and civil procedure have been codified in various states. Some states have attempted to codify the entire civil law, but experience has proved that this may easily render the law too rigid.

605. OTHER SOURCES OF LAW.--The state const.i.tution, the Federal Const.i.tution, and Federal laws and treaties with foreign countries are other sources of state law.

In summary, the various kinds of law which are enforceable in the state courts may be considered as forming a pyramid, built upward by the following steps: English common law, equity, state statutes, the state const.i.tution, Federal statutes, treaties with foreign nations, and the Federal Const.i.tution.

B. STRUCTURE OF THE COURTS

606. THE JUSTICE OF THE PEACE.--State courts are arranged in a progressive series. At the bottom of this series is the justice of the peace, who exercises jurisdiction over petty offenses and over civil cases involving very small amounts. Generally there is a justice of the peace in each towns.h.i.+p or other local district. In large cities the civil and criminal jurisdiction of the justice of the peace is usually divided between two sets of courts: first, the munic.i.p.al or city courts, with a minor civil jurisdiction; and second, the police or magistrates' courts with jurisdiction over petty criminal offenses.

The police or magistrates' courts have the power to make preliminary investigations in case of felonies or serious misdemeanors.

607. THE COUNTY COURTS.--Above the justices of the peace there are, in most states, a number of county courts, exercising limited jurisdiction. These courts, sometimes called courts of common pleas or district courts, have jurisdiction over civil cases involving considerable sums, as well as jurisdiction over most criminal offenses. In addition these courts usually consider appeals from the judgments of justices of the peace.

608. SUPERIOR OR CIRCUIT COURTS.--In many states there is a superior, circuit, or district court immediately above the county courts, though in some states this tribunal takes the place of the county courts. The superior court has jurisdiction over civil cases involving unlimited sums, as well as unlimited original jurisdiction over criminal matters. It may also try all cases over which the lower courts have no jurisdiction.

609. THE SUPREME COURT.--At the head of the state judicial system there is a court of last resort, known in various states by different names. It may be called the court of appeals, the court of errors and appeals, or simply the supreme court. Practically all of the cases coming before this court are appealed from the lower courts.

Ordinarily it deals with points of law rather than of fact.

610. SPECIAL COURTS.--In addition to the regular state courts there are sometimes special tribunals for special purposes. Examples of such courts are the probate or surrogates' courts for the settlement of the estates of deceased persons; children's courts for the treatment of cases involving children; courts of domestic relations; and courts of claims for hearing claims against the state.