Address of Fred C. Gause, president of the Indiana State Bar Association, delivered at the annual meeting of the Association, July 10, 1936

Gause, Fred C.

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Indiana University Bloomington Maurer School of Law

Indiana Law Journal Volume 11 Issue 6 Article 1 8-1936 President's Annual Address Fred C. Gause Indiana State Bar Association Follow this and additional works at: https://www.repository.law.indiana.edu/ilj  Part of the Legal Profession Commons Recommended Citation Gause, Fred C. (1936) "President's Annual Address," Indiana Law Journal: Vol. 11 : Iss. 6 , Article 1. Available at: https://www.repository.law.indiana.edu/ilj/vol11/iss6/1 This Article is brought to you for free and open access by the Law School Journals at Digital Repository @ Maurer Law. It has been accepted for inclusion in Indiana Law Journal by an authorized editor of Digital Repository @ Maurer Law. For more information, please contact rvaughan@indiana.edu. INDIANALAW JOURNALVolume XI AUGUST, 1936 Number 6PRESIDENT'S ANNUAL ADDRESSBy FRED C. GAUSE-It is the custom for the President to address you at theannual meeting upon the activities of the Association and itsaccomplishments and purposes:I desire first to express to the members of the Associationmy appreciation for the distinguished honor you conferredupon me by making me your president for the past year. Ihave had the fullest measure of co-operation from all mem-bers and officers and my duties have been pleasant on accountthereof. My predecessors had succeeded in placing the Asso-ciation in a position where it can point with pride to muchprogress, and the present excellent condition of our organiza-tion is due much more to them than to me.The Indiana State Bar Association is now forty years old,having been organized in June, 1896.At the beginning it had 110 members.On June 30, 1936, as shown by the report of the. member-ship committee, we had a total membership of 1411, besidesstudent members to the number of 169.This represents a substantial increase over a year ago.As shown by the report of the treasurer at the last annualmeeting we had on hand $742.11, and which was a great im-provement over prior years.*Address of Fred C. Gause, president of the Indiana State Bar Associa-tion, delivered at the annual meeting of the Association, July 10, 1936.493INDIANA LAW1V JOURNALWe had on hand July 1st this year $2047.09, and the onlyunpaid bill was for $405.98 which had not been presented atthat time, but has since been paid.It is then apparent that both numerically and financiallywe are making substantial progress.However, we should have many more members.If our Association is to accomplish the things which itshould, it is important that a greater number of the activelawyers of the State join with us.Of course, this Association, as is true of all similar groups,is subjected to criticism by non-members. Some of it is just,but a much better course, and one which would have some realobjective, would be for the fault finders to become activemembers of the Association and then aid in removing thecauses of criticism, rather than being content to find fault.We want every member to feel that he has an equal voicein the affairs of the organization and to that end have ap-pointed a special committee to recommend changes in theby-laws as to the manner of nominating and electing officersand as to co-operation with local associations.The first report of this committee is to be considered laterin this meeting, but regardless of the action that may be takenon such report, we believe such a committee should be con-tinued and further study given as to how the Association maybe made more useful to its members as well as representativeof their views.It was, of course, the primary purpose of the lawyers whoorganized this Association forty years ago, to raise the stand-ard of the profession and improve its usefulness.It should be a source of gratification to the surviving mem-bers of that original group, as well as to all others, that wecan point to many accomplishments in fulfillment of the orig-inal purposes.Naturally the ultimate goal is never attained in such mat-ters and there is much yet that can and should be done toimprove the standard of the legal profession, but real prog-ress can be reported.PRESIDENT'S ANNUAL ADDRESSJUDICIAL COUNCILThe practice and procedure followed in legal proceedings isalways the subject of dispute and criticism.The result is that at about every session of the legislaturean attempt is made to change the statutes upon the subject.Because of the conditions under which the legislature worksin its limited sessions, with a multitude of other subjects to bedealt with, proper consideration cannot be given to the pro-posed changes.It follows that desirable changes are apt to be ignored andoccasionally changes of doubtful or no value are made.Through the effort of the Bar Association we now have aJudicial Council established by an Act of the General As-sembly of 1935, to study and recommend from time to timewherein the practice and procedure may be improved.We shall hear a report later of the activities of this Counciland in view of the character and ability of the men on thatCouncil and the thorough manner in which it is making itsinvestigations, it is certain that this body will be of outstand-ing benefit to the public in raising the standard of judicialprocedure to a higher level.RULE MAKING POWERIf the Judicial Council recommends that any change bemade in any existing statute relating to judicial procedure, itis necessary that the legislature act thereon before such recom-mendations can be effective. Our Association has approvedthe proposal that changes to be made in all matters of prac-tice and procedure should be made by rule of the SupremeCourt. The proposal is that the present statutes on that sub-ject remain in effect as rules of the Court until changed by theCourt.With a Judicial Council to investigate and recommend anysuch changes and the Supreme Court to finally pass upon andeither adopt or reject such recommendations, it would seemthat the public interest would be served, as well as that of thelegal profession, if this power were committed to the SupremeINDLANA LAW JOURNALCourt, rather than to have it exercised by the legislature underthe circumstances surrounding legislative sessions.The wisdom of such a course has been recognized in theFederal Government through the conferring by Congress ofthe power upon the Supreme Court of the United States tomake all rules governing practice and procedure in the Fed-eral Courts.The courts get the blame for imperfections in judicial pro-ceedings and they should have the power to remove suchimperfections.ADMISSION AND DISBARMENTIt is no longer possible for a person to become a member ofour profession without -making any effort to qualify himselffor the practice of law.As a result of the continued effort of our Association theexclusive right to admit to practice has been conferred uponthe Supreme Court and that Court has prescribed rules set-ting up educational standards and examination requirementsto the end that, in the future, only such persons of good moralcharacter who have made adequate preparation to becomecompetent and reliable shall be admitted to the bar.This is a step of outstanding importance, not only to theprofession, but to the public, and will be of great benefit inthe future.But while congratulating ourselves upon this important ac-complishment we must not think that our duty has ended inthis respect.We have succeeded in taking one important step in makingit more difficult for the incompetent or the unreliable to beadmitted to the bar, but we have not succeeded yet in takingthe next necessary step, namely, making it possible to dealwith the occasional lawyer, who, after admission, disclosesthat he is not worthy of the trust imposed upon him.The great majority of lawyers maintain a high standard ofprofessional ethics. They are entirely trustworthy and loyalalike to the courts and to their clients.PRESIDENT'S ANNUAL ADDRESSUnfortunately a few do not meet these qualifications andusually it is the conduct of these few which is given wide pub-licity and the public is prone to judge the entire profession bythe conduct of the few.Our profession is censured because it does not rid itself ofthose who violate their professional obligations and the oathsthey take as attorneys and officers of the Court.The lawyer knows that the present recognized procedurefor the disbarment of attorneys is inapplicable in many casesof professional misconduct. The public generally does notknow this and the legal fraternity is censured for its supposedunwillingness to do anything.Many times the legislature has been asked to pass laws reg-ulating such matters in a way that would be effective, but eachtime it has refused to act.It is well settled that the admission of a lawyer to practicecalls for judicial action upon the part of a court, and thatwhile the legislature may pass regulatory Acts in respectthereto, which the courts will follow, so long as such Actsare in aid of the court's power, it cannot take away from thecourt its inherent right to finally determine who should beadmitted.It is likewise well settled that the disbarment of an at-torney is a judicial act.The legislature may pass regulatory Acts to aid the courtin exercising its functions, but cannot deprive the court of itsinherent power to determine such matters.An attorney is an officer of the court and I do not believethat when the Supreme Court admits an attorney to practice,its power over the attorney has been exhausted.The trend of modern decisions sustains the view and in myopinion, it is the correct view, that a court which has powerto admit attorneys to practice has the inherent power to dis-cipline or disbar them for misconduct thereafter, and no Actof the legislature is necessary to enable the court to exercisethis inherent judicial power; that it is a part of the powergranted by the constitution which confers the judicial powerupon the courts; that the legislature may pass Acts in aid ofINDIANA LAW JOURNALthe exercise of this power, but cannot withhold the power,either by failing to pass any Act on the subject, or by so limit-ing the power as to make it impossible of proper exercise.The Association has petitioned our Supreme Court to adoptrules to govern proceedings before that Court in the exerciseof this power.We believe that if the court finds it has such power andadopts rules for its exercise, the profession will be able totake the second important step.It is more difficult for the unreliable one to get in and itshould be reasonably possible to get the unreliable one whois in, out.No reputable lawyer need have anything to fear from theexercise of such power by the court.Those who are true to the principles of our professionshould be active in advocating the curbing of those few whodo so much harm to the reputation of the many.One dishonest or disreputable lawyer can injure the publicstanding of a thousand honorable ones.We should not be content merely to know that our ownconduct is proper, but we should be anxious to raise the stand-ard of the entire profession in the opinion of the publicgenerally.DUTY oF LAWYER TODAYThe lawyers of this country have always taken a leadingand patriotic part in the affairs of the government both inpeace and in war.Their study and activities make them familiar with publicquestions. They are trained in representing the interests ofothers and the prominent part they have taken in great ques-tions of national concern from the time of the Revolution tothe present day has been natural.The lawyers of our nation, in my opinion, have a publicduty to perform at this time, that is as important as any withwhich they have been confronted.As every citizen and every school child knows, our govern-ment is based upon a written constitution, but what some doPRESIDENT'S .NNUAL ADDRESSnot understand is how this written constitution is made andkept effective.Everybody knows that in that written Constitution everycitizen is guaranteed certain rights, but some do not seem torealize how those rights are to be preserved.The Federal Constitution provides that, "All legislativepower herein granted shall be vested in a congress of theUnited States."It will be noted that it is not all legislative power that isgiven to Congress, but only such as is granted by the Consti-tution.Not only is the power of Congress limited to that grantedin the Constitution, but before the Constitution was ratifiedthe states exacted a promise that certain express limitationsshould be incorporated by amendments. As a result the firstten amendments, known as the Bill of Rights, were adopted.This Bill of Rights expressly prohibits congress from doingcertain things.For example, it cannot pass a law respecting an establish-ment of religion. It cannot interfere with free speech or afree press;It cannot take a person's liberty or property without dueprocess of law and no one's property may be taken, even for apublic purpose, without compensation.But suppose congress should attempt to do any one or allof the things that the Constitution says it cannot do?Must the citizen submit notwithstanding the written safe-guards in the Constitution?Fortunately the same Constitution which limits the powersof congress does make secure the rights of the citizen againstthe abuse of such power.That Constitution declares what the supreme law of theland shall be. It shall be, the Constitution and the laws madein pursuance to the Constitution, and all treaties made.If then an Act passed by Congress conflicts with a provisionof the Constitution, a judicial or legal question at once arisesas to which is the law.. INDIANA LAW JOURNALThe determination of that question of course requires theexercise of judicial power.Judicial power is the power to decide as to what is the law.That same Constitution expressly provides that,"The Judicial power of the United States shall be vestedin one Supreme Court," and in such inferior courts as maybe established.The Constitution then does provide a safeguard for therights it guarantees each citizen. That safeguard is theSupreme Court of the United States, and it acts as a safe-guard merely by exercising the power expressly granted to itby the Constitution.We are all familiar with the language which Chief JusticeMarshall used in describing the duty of the court, in case ofa conflict between the Constitution, which is the supreme law,and a statute.Nowhere have I seen this duty of the court stated moreclearly and succinctly than by Judge Blackford, of our StateSupreme Court, where that question, as relating to a conflictbetween the State Constitution and a state statute, was in-volved. This was in the first case that the question was pre-sented after the organization of our State.In a case reported in 1 Blackford 204, in consideringwhether a state statute took away the right of trial by jury,the Court, speaking through Judge Blackford, said:"If, however, that was their (the legislature's) intention, we haveonly to say that so much of the Statute as destroys the common lawright of trial by jury in civil cases, where the value in controversy ex-ceeds 20 dollars, must yield to the constitution, as the fundamental andparamount law of the land, which has wisely placed that invaluableright beyond the control of any department of the government. Thetask is delicate and unpleasant, but the duty of the court is imperative,and its authority is unquestionable, to declare any part of a Statute nulland void that expressly contravenes the provisions of the constitution, towhich the legislature itself owes its existence."I am, of course, not discussing the correctness of any de-cision of any court. I am only discussing the power of thecourt to make the decision and the necessity that the courtPRESIDENT'S ANNUAL ADDRESShave such power, if we desire to continue under a writtenconstitution.Individual judges may differ in their opinion as to whethera particular Act does or does not conflict with the Constitu-tion, but no judge, in more than a century, has ever deniedthat the court had the power to decide that question, or thatsuch power was necessary.In none of the cases decided by the Supreme Court, has anyattorney ever contended that the court did not have the poweror that it was not its duty, to decide that a legislative Act wasinvalid if it was in conflict with the Constitution.I do not need to argue this question with lawyers. Theysee the necessity for the continuation of such power, otherwise,as they know, the written constitution would become but ascrap of paper.What I do desire to impress upon the lawyers, is the neces-sity for them to take the lead in resisting all efforts to takeaway from the courts this power.Although, as I have said, no court, no judge and no at-torney of record is found denying such power, or its necessity,we do see many theorists, many persons who believe a mis-take was made in not waiting to write the Constitution untilthey could have had a part, either contending that no suchpower is possessed by the court, or if it is possessed that itshould be either taken away entirely or materially curbed.As to those critics who assert that the Court has madeerroneous decisions, it might be said that if we assume suchdecisions have been made, that is no more argument in favorof taking away the Court's power, than that the power ofCongress should be taken away because it may have passedsome unwise laws.Of course, the power of neither should be taken away be-cause of occasional mistakes made.The constitutional guaranties are, obviously, safer in thehands of an independent judiciary than if left to the will ofCongress operating under the pressure of political influence.Believing, as we do, that a constitutional form of govern-ment is superior to a parliamentary form, where the legisla-INDIANA L.4W JOURNALture has no limit to its powers, it seems to me that no greateropportunity has ever presented itself to the lawyers of thiscountry to be of patriotic service than to take the lead in im-pressing upon the public the soundness of our constitutionalform of government and resisting any and all proposals, fromwhatever source and in whatever form, to deprive us of thejudicial safeguard which the Constitution has so wisely pro-vided, to make secure the rights of each citizen.If the people desire Congress to possess powers to enactlaws of a sort which it does not now have power to enact theremedy is, not usurpation of powers reserved to the states orto the people, but further grant of power from the states orfrom the people through amendment of the Constitution.But whatever further grants of power may be made to Con-gress, the necessity will always exist for power in the Court touphold the Constitution as the supreme law of the landagainst all usurpation of power and against all infringementsof our constitutional guaranties.Let us be ever careful that our own conduct is such as notto lessen public confidence in the courts of the land and vig-ilant in our efforts to maintain their independence and power,for upon that power and upon its independent and fearlessexercise clearly depend the continuance of our constitutionalsystem of government and the preservation of the funda-mental rights and liberties of our citizens.

President\u27s Annual Address

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President\u27s Annual Address

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