legislative, executive and judicial departments of government shall be separate and distinct, and neither shall exercise the powers properly belonging to either of the others."

Our constitution, which is the product of deliberate thought, limits the element of sovereignty known as the judicial. Of all governmental instruments, our constitution is the most solemn and powerful and until it is changed by the source of all power and authority in our government, the people themselves, its mandates are supreme and should be obeyed. This view with reference to the appointment of Supreme Court Commissioners by the chief executive officer, and especially being subject to removal by him or the appointment thereof by the legislature, has the judicial sanction of some of the highest courts of our land and is well founded in reason, logic and law.

State of Indiana, ex rel. Alvin P. Hovey v. William T. Noble et al., 118 Ind. 350; 4 L. R. 101, 21 N. E. 244, 10 Am. St. Rep. 143. State v. Mount, 15 Ind. 679, 51 N. E. 417, 52 N. E. 407. Wright v. Defrees, 8 Ind. 298. Held, in the case of People of State of California ex rel. v. R. Y. Hayne et al., 7 L. R. A. 348, that Supreme Court may appoint commissioners. Kent. Comm. & Cooley,

Const. Lim.

are not

The authorities hold that "neither the executive nor the legislative can select persons to assist the courts in the performance of their judicial duties." The doctrines that the powers of the three departments of government merely equal, but are exclusive in respect to the duties assigned to each and are absolutely independent of each other, has been asserted and enforced again and again and are found in the works of every philosophical writer on government. Montesquieu, Spirit of the Laws, 33; Lieber, Civil Liberty, 154; Ingersoll, Fears for a Democracy, 23; Woodrow Wilson, Congressional Government, 12-36; 3 Burke, Works, 110; 1 Bryce, American Commonwealth, 31; 2 Bryce, American.Commonwealth, 429.

The teachings of Jefferson and the spirit of democracy are opposed to centralized power and favor the three departments of our government being

It is

to that extent become less secure. not enough to say that a poor person can file a pauper affidavit and prosecute their cause without advancing costs, for such course causes humiliation and many would rather be deprived of a just right than suffer such abasement of pride. Sec. 5 of Art. II, of our constitution provides that:

"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice."

See citation of authorities under this section in Williams' Constitution.

Since our constitution assures us of our "inherent right to life, liberty, the pursuit of happiness, and the enjoyments of the gains of our own industry" and provides that "No person shall be deprived of life, liberty or property, without due process of law," should we consider its wholesome provisions as merely catchy phrases and enact laws which deprive some of rights which it in spirit and intent guarantees? Since our constitution provides that our courts shall be open for "speedy and certain remedies" and that "right and justice shall be administered," etc., can it be said that regulations imposing an advance cost deposit of $40.00 as provided in said Act, as an incident of judicial proceedings in causes appealed to the Supreme Court, are

unreasonable, and, if unreasonable, that said Act is constitutional?

Has Not Stopped Appeals.

The law requiring the advance deposit cf $40 went into effect March 5, 1915.

During the six months prior thereto 408 cases were filed in the Supreme Court

and from the date said Act went into effect to Sept. 11, 1915, six months and six days, 450 cases were filed in the Supreme Court, showing an increase in the number of cases filed instead of a decrease as contemplated would be the reIsult of said Act.

Theory "Let Dancers Pay the Fiddler." Some who supported the bill to increase the cost deposit, did so on the theory that, figuratively speaking, the "dancers should pay the fiddler," unmindful of the fact that courts are for the common protection and that a few whose rights become involved should not bear all of the burden when society in general is concerned. I have frequently replied to such argument by saying if such theory should be applied in other directions where society is concerned, a man who has much of this world's goods and has probably been elevated to positions of honor and trust in our government, if he has no children, should pay none of the school tax. All are concerned in justice being administered by the courts. All are concerned in our schools. The principles of common interest is applicable to each. We should not assume that the litigants on both sides are always wrong. It is the general rule that one party to an action is trying to protect their just rights. As government is but an aggregate of individuals and as we should recognize that law of society that "no

one is sufficient unto themselves," all are concerned in seeing that each gets their just rights.

If the docket fee had not been increased, the clerk would have turned over to the state about $15,000.00 per year over and above the running expenses of the clerk's office. Probably in no other state is it intended to make the clerk's office a source of revenue.

Of course, while the law remains in force, the clerk will try to collect all fees contemplated by the same, and when the $10.00 required as an advanced deposit,

is exhausted, additional deposits will be called for. In this connection, I may say that some attorneys do not understand that said deposit is for the clerk's costs only, but fall into the error of thinking the sheriff's fees, etc., can be paid out of the same.

Injustice to Poor Man.

Some voted for the increase in the cost deposit, thinking that the results would be favorable to the poor man. While the litigants pay the costs, the lawyers of the state appear to be almost unanimous in their condemnation of the law. I have heard two who favored the law, one of whom had something to do with the passage of the bill and the other is an attorney for one of our big railroad systems. The corporations are always able to put up costs and frequently they secure a reversal of judgments rendered against them. In such cases, it would be burdensome for a poor man to pay the costs incident to such appeal before

he could have a retrial of his cause. There would be cases in which a poor Inan would be deprived of some right because of the deposit required, but such would not be the case as to any corporation. Local corporations, such as banks, with their business relations, have as much chance as the poor man to secure a judgment in the first instance.

taken are by foreign corporations and Only a small per cent of the appeals they will not suffer the loss of any right because of an increased cost deposit, except the mere burden of the increased quired and this burden ultimately is shiftcost deposit over what should be reed by corporations to the people as part of the cost of production or operation.

What Our President Says:

In concluding, I wish to say that my thoughts on the subject under discussion are aptly enshrined in the wise suggestions of that profound student of history and peerless statesman, our president, who, at the Jacksonian Day Banquet on January 8th, 1915, in discussing our judicial procedure, said:

"I do know that the United States in its judicial procedure is many decades behind every other civilized government in the world; and I say that it is an immediate and an imperative call upon us

to rectify that, because the speediness of justice, the inexpensiveness of justice, the ready access of justice, is the greatest part of justice itself. If you have to be rich to get justice, because of the cost of the very process itself, then there is 10 justice at all. So I say there is another direction in which we ought to be quick to see the signs of the times and to help those who need to be helped."

UNANIMITY IN VERDICTS.

In view of the fact that Oklahoma voters are to vote next year on an amendment to the constitution reducing the number of jurors in certain cases and providing that three-fourths of the whole number of jurors in criminal cases less than felonies shall have power to render a verdict, the following observations on "Unanimity in Verdicts," taken from the effete east and the ultraconsérvative south should prove of more than ordinary interest to our readers:

"The New York Lawyers' Association has voted almost unanimously to recommend the abandoning in civil cases of the complete agreement among jurors and to allow a majority of the jury to find a verdict, says the Virginia Law Register. At the first blush such a change in the present system seems revolutionary and indeed it may be so considered without in any way detracting

from its merits. But when we come to look at it with cool and calm deliberation such a change seems, for more reasons than one, in every way advisable. For a long time in the state of Virginia the number twelve was a sacred one and lawyers held up their hands in holy horror at the iconoclastic creature who dared to even propose a change in that sacred number. And yet we have reduced the number to five in cases cognizable by justices of the peace and seven in cases not so cognizable, and we have even gone so far as to provide that by consent of parties three may constitute a jury and two of that three render a verdict. Since this change we have not noticed that the pillars of the temple of justice have been in the slightest degree shaken and lawyers have almost entirely forgotten their violent opposition to the change. Unanimity in civil cases is just

about as useless a fetich as the sacred number twelve and the sooner we "tear that idol from its throne" the better for the lawyers, litigants and the courts.

The absurdity of this unanimous verdict is about as clearly demonstrated as is possible by the fact that we do not insist on unanimity in the courts. Two out of three judges in the circuit courts of the United States; five out of nine in the Supreme Court of the United States; three out of five in our own Supreme Court of Appeals, decide questions involving vast amounts of money and most intricate propositions of law, going to the very foundations and basic principles of our jurisprudence, and we accept their verdict unhesitatingly. And yet in cases involving twenty-five dollars we allow one obstinate or stupid fellow to clog the wheels of justice, put the Commonwealth and litigants to costs almost as great as the amount in controversy, and consume the precious time of the courts with second trials. If we allow

by consent two out of three men to decide a case, then why make that consent necessary when five or six out of seven agree as to the right of a case? Logic and analogy-good, hard common sense -demand that this reform should take place. We have never yet heard an argument in favor of unanimity which amounted to anything except as to the traditional claim that it was the correct thing from an ancient custom. have broken away from the sacred number of twelve. Cannot our law makers break away from the other traditions and allow justice to be done in the most expeditious and reasonable manner?

But we

Within the last month we saw a case in court involving the enormous amount of $17.25 appealed from a magistrate. Five good men and true were sworn to try the issue joined. Two able lawyers -their combined fees must have been double the amount of the claim-wrangled three hours over the case. The jury remained out two hours and came back with a disagreement. The judge mildly suggested that the attorneys allow a majority of the jury to settle the case. One was willing, the other not and so the case went over, to accumulate costs and to consume another five hours. The joke of the matter is that four of the

jury were in favor of the client of the lawyer who refused to agree to a majority verdict.

a

was

AMONG THE ANCIENTS. Plea for monkey-One Saturday in the Boys' court of Chicago a little monkey stood before the judge charged with crime. The monkey's name "Billy.". While collecting pennies on the street for his master he bit Bessie Hine. Bessie's mother swore out two warrants, one charging the monkey with an assault and the other charging his master with disorderly conduct. The case against the monkey was called first. Assistant State's Attorney Malcolm B. Sterrett of Evanston stepped forward and said:

"Your honor, some one has filed a complaint against this monkey, charging him with a crime. The defendant is properly before the court. It plainly becomes my duty to prosecute the case, whether I want to or not. If I entered a nolle pros, I would do so on the theory the monkey is not human. I would rather the court would take the responsibility of deciding that question.

"In order for the state to secure a conviction in this case, it is necessary to take the position that the monkey is a human being. If he is a human being and guilty of this offense, he should be held to the grand jury. If he is not a human being, he should be dealt with in some other manner. Whatever decision your honor makes, the Darwinian theory will be involved.

"Darwin, the great naturalist, set forth the theory that man and the monkey are descended from a common ancestor; that they both belong to the same class, because they present, independently of their habits of life, the same fundamental type of structure and because they graduate into each other. He contended that in the struggle for existence the stronger species survive and multiply and the weaker and more imperfect perish. By imperceptible degrees man has risen to his present position, leaving his little brother behind.

"The criminologists of these days are laying great emphasis upon what they call 'arrested development.' They tell us that the boy criminal of 18 years of age who has the mentality of the boy of 9

years is a moron, that his development is arrested, and that he is incapable of any further advancement. If this is true then Darwin and the criminologists are in perfect accord, for the monkey of today was the moron boy of centuries back.

"Courts are treating the moron boy offender these days with great leniency on the theory that he is not entirely responsible for his acts. Are we no inconsistent if we fail to show the same leniency for this little moron brother? If this defendant is declared not a huinan being he will be shot like a dog, in cold blood."

At this point the monkey, which had been seated on the table facing the judge and listening intently to the prosecutor's argument, jerked off his little red cap, made a profuse bow, and plainly indicated his approval of the words uttered in his behalf.

The judge, while inclined to uphold the Darwinian theory, discharged the defendant because of an impression he had that the courts had already decided against the state's contention.

The LAW JOURNAL has a field of usefulness all lits own and it has no ambition to infringe upon the prerogatives cr preserves of any other publication. The Appellate Courts of Oklahoma at this time are "making law" by the construction of statutes and constitutional provisions at a rate far in excess of like tribunals in the older states and these opinions and decisions are of first importance not only to Oklahoma lawyers, but to counsel for interstate and other corporations doing business in Oklahoma. This JOURNAL will have a staff of contributing editors who will discuss and criticize with helpful ability our present statutes and proposed amendments to our constitution and laws, and it will be the constant aim of the publishers to have the JOURNAL fill its own field of usefulness to the legal profession and the people of the state. With that aim in view we ask for the LAW JOURNAL under its new management a critical examination by its readers and any suggestions they may have to offer as to its improvement in features that will add to its usefulness and force with the profession.

1. Each member of a partnership has a joint interest in all the partnership property; and one member has no right to use partnership property other than for the benefit of the partnership, without the knowledge, consent or approval of the other members thereof.

2. Where one member of a partnership, without the knowledge consent or approval of the other, endorses a firm check in payment of his past due debt, and the recipient receives said check with the knowledge that the same is being so used and that said partnership is insolvent, he cannot be said to be a bona fide holder thereof.

Error from the County Court of Custer County, J. C. McKnight, Judge.

Action by C. A. Thomas against Nichols & Company of Oklahoma City, Oklahoma; W. J Laws intervening. Judgment for plaintiff, and defendant and intervener bring error.

REVERSED AND REMANDED.

Geo. T. Webster, Attorney for Plaintiff in Error.

T. W. Jones, Jr., Attorney for Defendant in Error.

OPINION BY DUDLEY.

SMITH,

Plaintiff in Error.

V.

G. B. ARMSTRONG,

Defendant in Error.

SYLLABUS

No. 4552.

1. Replevin will not lie for an undivided interest in personal property, which is not divisible into eliquot parts.

9

Where replevin is inadequate on account of the indivisible nature of the property mortgaged, plaintiff's remedy is in equity.

3. Assuming without deciding that the court had power to appoint a receiver under the facts in this case, yet it was an abuse of discretion to appoint a receiver for property not embraced in the mortgage.

Error from the District Court of Woodward County, James W. Steen, Judge.

Action by G. B. Amstrong against B. Rowley Thomas and J. Everett Smith; judgment for plaintiff, and defendants bring error.

1. Arbitration is the submission of some disputed matter to selected persons, and the substitution of their decision or award for the judgment of the established tribunals of justice; and this method of settling disputes is recognized at common law. In the absence of a statute on the subject, the common law controls.

2. The agreement of submission may be by parol, and this is true as to the award, unless the submission contains a provision as to the form in which the award may be made.

3. A parol submission to arbitration is valid in any case where an oral agreement of the parties with respect to the matter submitted would be valid and enforceable.