THE ALBANY LAW JOURNAL: A WEEKLY RECORD OF THE LAW AND THE LAWYERS. The Albany Law Journal. ALBANY, JULY 5, 1873. LAW REPORTING. The professions are beginning to have a lively conviction that the method of reporting the Supreme Court decisions, as now carried on in this State, is become a serious evil, and calls for immediate reform. Indeed, it is a matter for no little surprise, considering the number of gross errors in the reports that have been recently pointed out, that we have so long patiently submitted to such intolerable carelessness, to say nothing of the lack of system. from judge of counsel, without expense or trouble to themselves. To insure a complete collection, it would have been necessary to pursue the course pursued by the ALBANY LAW JOURNAL, of having a paid corps of men to procure and copy the decisions promptly. But this would have involved expense, and so Mr. Barbour and the others have gathered here a little, and there a little, have duplicated and triplicated, and padded, and have trusted to that indulgence which has been already too long extended to them. Had either one of these reporters gone about his work with system and an honest determination to cover the whole ground, he would have had little difficulty in driving his competitors from the contest, and in reaping a suitable pecuniary reward for his trouble and outlay. Of the other evils that characterize our reports - of the multiplication of reports of the same case, indiscriminate publications, prolixity and reckless report The law in this country, as in England, has become largely a science of precedents, and it is of the utmost importance, both to the profession and to the public, that the reports of the adjudications of the courts being accurate and complete. Such, however, have not been the reports of the decisions of the Supreme Court of this State, during the last quarter of a century. The report of the committee of the Bar Association of New York, which we noticed in a recent number, shows very fully some of the evils which characterize our reports, but omits to point out one of the most serious, i. e., the total lack of any system or arrangement to secure a complete collection of all decisions worthy of publication. Between 1846 and 1870, there were in this State eight general term divisions of the Supreme Court, each holding three or four sessions a year, and thirty odd judges who sat at general term. Since 1870, there have been four general term divisions of the court, twelve judges, and eighteen sessions a year. Now, at no time has any one of the reporters who pretend to report the decisions of that court, made, or attempted to make, any thing like a systematic arrangement, to secure copies of all the opinions delivered, or of the more important of them. They have contented themselves with publishing every thing, that they could pick up it is unnecessary to speak here, as these matters were sufficiently adverted to in our notice of the report of the Committee of the Bar Association, two weeks ago. The important question now is, in what form, and from what quarter is relief to come? What system can be adopted that will insure accuracy, promptness and completeness, and at the same time, relieve the profession of the burden of buying so many volumes per year. Our own preference is for a reporter appointed by the judges. We have already expressed our dissent from the conclusion of the Committee, that the reporter should not be "in any way dependent upon the court whose favor and friendship it is his privilege to win and enjoy." We notice that the Nation in a recent article upon this subject, reached the same conclusion, but on precisely opposite grounds; for while the Committee follow the above conclusion, with the assertion that "In a free country it is well that the courts should feel that they are acting before an intelligent and reading public, to whom their decisions will certainly become known, through fearless and independent reporters," the Nation asserts that "such a reporter" that is, one appointed by or dependent upon the judges - "is a mere clerk of the judges and that his selection by them exempts their work from every thing in the way of rejection or criticism." We happen to be of the number who believe that there is nothing to be feared from the judges either in suppressing decisions worthy of publication, or in forcing unworthy ones upon the world. If there were no other reason why the judges should appoint the reporter, we should deem it sufficient that the Constitution directs it. And in this connection we may as well refer to the intimation in the Committee's report that it is the duty of the judges to send their opinions to Mr. Lansing, and that they are violating the law in sending them to any other reporter. Mr. Lansing is technically the official reporter of the Supreme Court, and nothing more. He was appointed under the act of 1869 by the Governor, Secretary of State and Attorney-General. The constitutional amendment of 1870 directed the legislature to provide for the appointment of a supreme-court reporter by the judges designated to hold general term. At the convention of the judges held in December, 1870, a resolution was passed requesting the governor to invite the attention of the legislature "to the necessity of making provision by law for the appointment of a reporter of the decisions of the supreme court, as provided by the constitution." The Governor did invite the attention of the legislature to the matter, but that body, through the influence of those interested in Mr. Lansing and his reports, declined to act, and the same influence has to this day defeated any attempt to have the legislature obey the Constitution. Mr. Lansing is Reporter only because he has succeeded in inducing the legislature to violate the explicit terms of the Constitution, and to ignore the expressed wishes of the judges. He is, therefore, as an "official" not entitled to much consideration from the judges. But, in order to have an official reporter, whether appointed by the judges or not, succeed in doing his work thoroughly and satisfactorily, the legislature must pursue a more liberal policy than in the act of 1869. That act gave the reporter no salary, and limited the price of his reports to $2.50 per volume - - а sum hardly sufficient to cover the cost of publication. The reporter must have adequate compensation for his work, besides a sufficient allowance to pay the expense of securing copies of the opinion case and points in every decision. It will not do to leave the matter of forwarding opinions to the judges. They have enough else to attend to and are very apt to neglect it. The reporter should have a copy of every opinion prepared, and should have every means and facility necessary to insure getting it. The present reporter of the court of appeals receives a salary of $5,000, with $2,000 additional for clerk hire, besides an income of two or three thousand a year from copies of opinions. The same appropriation to a Supreme Court reporter would secure the services of a man thoroughly competent, and would enable him to secure promptly copies of all the opinions given in each department. But if we may judge from past experience, there is little probability that the requisite legislation can be secured, for the appointment of a reporter by the judges, at a fair salary, and with the requisite appro| priations for collecting the opinions and other necessary material. It becomes a question then as to the feasibility of a Council of Law Reporting after the plan of that of England. The English Council of Law Reporting was organized in 1865, for the purpose of establishing "under the management and control of the profession, of one set of standard reports upon the basis of a fair regard for existing interests." This council represented the entire Bar and was appointed by the Inns of Court, Sergeant's Inns and the Incorporated Law Society. The Attorney-General, and Solicitor-General were ex officio members. The Council acted gratuitously, but had the services of a paid secretary. The Council had the appointment of the editors and reporters. There were then running fourteen independent series of reports, and in order to effect their discontinuance, an appointment was offered to every member of the bar then engaged upon any one of the fourteen series. The reports were issued in three series, each in monthly parts. The statutes were issued as a separate series. The subscription for the entire series was fixed at £5 5s. per annum. All but three of the reporters of existing reports accepted the appointment, and all but one of the fourteen series of reports were discontinued shortly after the establishment of the Law Reports. Three series connected with the legal periodicals have, however, been continued, and, as we were recently informed by a London law publisher, are well supported. These are the "Law Times Reports," and the "Weekly Reporter," both issued in weekly parts and the "Law Journal Reports" issued monthly. In England, owing to the fact that the entire Bar is located in London, it was not a difficult matter to secure a council which should, at least in theory, represent the entire profession, but in this State it would be next to an impossibility, so scattered are the lawyers and so entirely without professional organization. Practically, the designation of the council and the entire control of the whole matter would rest with the Bar Association of New York. While there can be no doubt that that Association would conduct such an enterprise as ably as would a State organization, it would lack something of that prestige and favor with the profession, outside of the city of New York, which would attend an enterprise conducted by representatives of the entire Bar of the State. However, in any event, the ultimate test would be that of merit. The Committee of the Bar Association very clearly entertain the conviction that only the more import ant opinions of the court should be reported. While in theory this may be true, its adoption will result in defeating one of the most important objects hoped for from a new series of reports the repression of all contemporaneous reports. So long as either of the present reporters can secure opinions which do not appear in the proposed new series, so long they will find support. The English Council of Law Reporting adopted this system of selection, and the result is that there are three series of reports running and well sustained, besides the Law Reports. VI. 69. In Rex v. Ives, 7 C. & P. 213, Coleridge, J., said: "The inn-keeper is not to select his guests. He has no right to say to one, you shall come into my inn, and to another you shall not, as every one coming and conducting himself in a proper manner has a right to be received." See, also, White's Case, Dyer, 158; Bac. Abr., Inns and Inn-keepers; Bennett v. Meller, 5 T. R. 274; Kirkman v. Shawcross, 6 id. 17; Thompson v. Lacy, 3 B. & Ald. 285; Newton v. Trigg, 1 Shower, 270; Hawthorne v. Hammond, 1 C. & K. 404; Markham v. Brown, 8 N. H. 523. And as the common-law rule is so ample in the protection of the rights of all guests who may apply at a hotel for accommodation, the New York statute has done nothbeing more than declare the common-law rule in this regard. Lord Coke said "that there is no case or point of law, seem it of ever so little account, but will stand the student in stead in some time or other, and, therefore, in reading is not to be omitted." If this true in reading, it is just as true in reporting. What the profession at present requires is a series of reports which shall give promptly, accurately and concisely a report of every decision that can be of any possible use, and which shall be printed in such type and upon such sized pages as to keep within the limits of three or four volumes a year. Such a series, whether emanating from the Bar Association or from private enterprise, will meet with success. THE NEW YORK CIVIL RIGHTS BILL. The action of the late New York legislature in passing what is known as the "civil rights bill" was regarded, popularly, as a great concession to the colored classes. A few weeks ago we endeavored to show that this bill had made no real change in the liabilities of the keepers of places of amusement, or in the rights of colored persons at such places -in other words that "the keeper of a place of amusement may exclude a ticket holder, whether he be white or colored, from the premises; and we do not understand that the New York statute alters this rule in the least." A further examination of this statute leads us to conclude that the statute has not changed the common-law rule with reference to the rights of colored persons at the places and under the circumstances enumerated, except perhaps in one or two respects. A statute could not well have been framed which should make a greater appearance of conferring new rights and privileges upon the colored classes, but which should really affect so little in what it should pretend to do. Besides keepers of places of amusements, the statute mentions inn-keepers, common carriers, trustees of schools and superintendents of cemetery associations who are prohibited from excepting or excluding any person, by reason of race, color or previous condition of servitude, from the full and equal enjoyment of any accommodation, advantage, facility or privilege furnished by them. Now, the common-law rule, with reference to receiving guests at a hotel, is that the hotel keeper cannot exclude persons on any ground save disorderly conduct, and, perhaps, bad character or reputation. See ante, vol. And the same thing may be observed with reference to the rights of colored persons in railway cars, steamboats and ships. Any one who purchases a firstclass ticket of a railroad company is, at common law, entitled to the accommodations to which the ticket refers and which are usually accorded to persons holding such tickets. The carrier, whether by land or water, is bound to sell tickets to all who apply, to the limit of his capacity, and no discrimination can be made except on account of disorderly conduct or bad character or reputation. In Chicago and Northwestern Railway Co. v. Williams, 55 Ill. 185, it was held that where, by the rules of a railroad company, a car in their passenger trains was set apart for the exclusive use of ladies, and gentlemen accompanied by ladies, the company have no right to exclude a colored woman from such car and its privileges, simply on the ground of her color. And we apprehend that where a common-carrier excludes colored persons he is obliged, at common-law, to show that the exclusion was on some other ground than that of color. In Jencks v. Coleman, 2 Sumn. 221, which was an action for refusing to receive plaintiff on board defendant's steamboat, Story, J., referring to the general rule in case of exclusion of passengers, said: "Persons who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct, or who may make disturbances on board, or whose characters are doubtful, or dissolute, or suspicious, and a fortiori whose characters are unequivocally bad," may be excluded by the carrier. The plaintiff in this case was white; but the remarks of Judge Story are universally applicable, and colored persons who fall under any of the disorderly or bad olasses, enumerated by the learned judge, may be excluded notwithstanding the New York Statute. With regard, then, to the rights of colored persons on railroads, steamboats, etc., the statute has made no change, and has simply declared the common-law rule upon the subject. Upon the subject of common schools the statute has, perhaps, made some change. Under the constitution of most of the States a common-school education is considered to be an absolute right of all the children. But the trustees have the power to classify children according to color, and place all the colored children in a separate room or building. See Robers v. Boston, 5 Cush. 198; Van Camp v. Board of Education, Y. O. S. 406; State v. Duffy, 7 Nev. 342. But even, under the constitution, the trustees would be compelled to admit colored children to the schools where there were no separate schools provided for such children. See State v. Duffy, supra. If, then, the New York statute has affected any alteration in the previous rule relative to the education of colored persons, it has simply provided for the co-education of white and colored children, and this co-education is extremely ambiguous under the phrasing of the statute. judges, and that at least one judge versed in equity ought to be associated with every Common-law Division. On moving the second reading, the Attorney-General gave the assurance that the government did not intend to higgle about money, but intended to constitute the new court with a view to the utmost possible efficiency, and not merely with the idea of getting the best tribunal possible for the smallest sum of money. Two or three of the members made feeble attempts to have the House of Lords retained as an appellate tribunal; but the Attorney-General denounced that institution in most decided and emphatic terms, saying among other things that "any one who knew practically what the House of Lords, as a court of appeals, was, knew that it was hardly possible to conceive a judicial institution more inconAbout the only important right which the statute has venient or more indefensible." The prospects for the secured to the colored classes is, perhaps, the right to passage of the bill in the Commons are exceedingly be buried where they may choose. If this is sufficient good. We may here remark that the practice outsatisfaction to that numerous class who think them-lined in the bill is nearly identical with that under selves to have been greatly benefited by our law giv- the code of this State. givers, the rest of the community ought to be therewith content. If, however, cemetery associations are voluntary, and it is optional with the officers thereof, as to whether they shall sell lots or grant cemetery facilities at all, or as to whom they shall sell or grant, the legislature has not controlled this option by the "civil rights bill;" and we fear that even the right of burial in a place selected by themselves is not secured to colored persons. CURRENT TOPICS. We notice that one of our law publishers announces a new series of reports of the decisions of the court of appeals, to be made up mainly of the important cases omitted from the regular series by Tiffany, between 1864 and 1868. It would be much more to our credit and convenience if we could have all of Tiffany's reports stricken from the series of the New York reports, by act of the legislature, and the work done over again de novo, by a competent person. It will probably always remain a mystery by what unhappy conjunction of circumstances Tiffany got the appointment of reporter; but there is nothing mysterious about the fact, that his reports are wretched to the last degree. We are informed that two of his volumes, 38th and 39th, were purchased by him from Mr. Keyes, who had prepared them as a part of his series of reports of rejected cases, and from the character of these volumes we have no difficulty in believing the statement to be correct. The English judicature bill has passed the Lords, and to a second reading in the Commons with what the papers call "cordial unanimity." The debate, upon the later event, developed but little hostility to the principles of the bill, but was confined mainly to matters of detail. The equity lawyers have all along insisted that provision should be made for more equity The superior court of New York, at general term, has affirmed the judgment of the court below, entered Putnam, the victim of the car-hook murder, against upon a verdict for $5,000, in favor of the widow of the Seventh Avenue Railroad Company, for injuries sustained through the murder of her husband upon one of the company's cars. The court adhered to the doctrine laid down in Goddard v. The Grand Trunk R. R. Co., and kindred cases noticed by us upon page 370, Vol. vii, that a common carrier is bound, "not only to guard each passenger from violence and assault of its agents and employees, but from the assaults and violence of other passengers carried in the same conveyance, and from other causes of discomfort or injury which could have been reasonably anticipated or prevented." This is the only reasonable interpretation of the contract between the carrier and the passenger, although unfortunately it is not that given by the court of appeals in Isaacs v. The Third Avenue Railroad Co., 47 N. Y. 122. The newspaper press has been very severely disturbed at the fact that Judge Hunt, in the trial of Miss Anthony, directed the jury to return a verdict of guilty. One of these papers asks: "Could not twelve honest, intelligent jurymen be trusted?" Very likely, provided there were "twelve honest, intelligent jurymen" in the box, which may be fairly doubted. But fortunately, even in criminal cases, the duty of the jury is limited to determining questions of fact. In the Anthony trial the facts were conceded, and the only question was one of law, which it was the duty of the court solely to decide. The pro forma verdict of the jury was necessary, but in reality the verdict was, as under the circumstances it should have been, the work of the court. The decision of the court of appeals in People v. Bennett, 49 N. Y. 137, sufficiently illustrates this matter. |