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Rule Making Power in Indiana Indiana Law Journal Volume 36 Issue 1 Article 5 Fall 1960 The Court v. the Legislature: Rule Making Power in Indiana Follow this and additional works at: https://www.repository.law.indiana.edu/ilj Part of the Administrative Law Commons, Constitutional Law Commons, and the Legislation Commons Recommended Citation (1960) "The Court v. the Legislature: Rule Making Power in Indiana," Indiana Law Journal: Vol. 36 : Iss. 1 , Article 5. Available at: https://www.repository.law.indiana.edu/ilj/vol36/iss1/5 This Note 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 [email protected]. NOTES bute of the trust arrangement is that it is flexible, and this rule promotes flexibility in the control and management of property. On the other hand, the application of pure property concepts pro- motes certainty and reliance. If the settlor creates vested or contingent interests in others-his children, issue, heirs, next of kin, etc.-they are persons beneficially interested in the trust and he cannot resume his former status merely because he later decides his disposition was un- wise." But where the consent rule is limited to persons in being at the time of revocation, and not at the time of execution, neither certainty nor reliance seem to be obstacles to its application. A trust has been said to be in the nature of a conveyance of property interests and not a mere contractual relation.71 But since it has its inception in a manifestation of intention to create it, it has similarity to a contract;"2 and contract con- cepts are involved in the trustee's relationships to the settlor and the beneficiaries.73 The flexibility of the trust arrangement in the manage- ment and distribution of property tends to rebut the view that it is like an ordinary absolute conveyance to which conveyancing notions alone should be strictly applied. The weight of precedent, however, makes the legislature, rather than the courts, a more practical, if not necessary, medium for reform because the present use of conveyancing rules is con- ceptually difficult within the trust context. THE COURT v. THE LEGISLATURE: RULE-MAKING POWER IN INDIANA Without specific constitutional authority the Indiana Supreme Court has always prescribed rules to govern its functioning.' The power to 70. Allen v. Safe Deposit & Trust Co., 177 Md. 26, 7 A.2d 180 (1939) ; Price v. Price, 162 Md. 656, 161 Atl. 2 (1932) ; 4 BOGERT, TRUSTS AND TRUSTEES § 993 (1948). 71. 89 C.J.S., TRUSTS §§ 9, 63 (1955). 72. Scotr, op. cit. supra note 69, § 2.8. 73. Stephens v. Moore, 298 Mo. 215, 249 S.W. 601, 604 (1923). 1. WILmOUr & FLANAGAN, INDIANA PLEADING AND PROCEDURE (Supp. 1959, at 125). "The first rules were adopted in 1817." These were printed in the Indiana Reports, 1, 4, Blackford's Reports; subsequent additions and revisions were printed in 1, 14, 22, 23, 26, 30, 32, 34, 36, 40, 43 and 49, Indiana Reports. The practice of publishing the rules in the Indiana Reports was discontinued in 1889; rules for that year and for 1900, 1911, 1923, 1936, 1938, 1940, 1943, 1946, and 1949 were published in pamphlet form. The revisions to the rules in 1954 and 1958 were published by WEST PUBLISHING COMPANY. In 1940 the rules reappeared in the Indiana Reports (218 Ind.) and in the Appellate Court Reports (108 Ind. App.) with the stipulation that they would be pub- lished in those reports only when revisions had taken place since the last publication of the rules. INDIANA LA FV JOURNAL promulgate these rules seems to have been derived from the separation of powers clause' of the Indiana Constitution on the theory that the rule- making power is a judicial power.' But the fact that the rule-making power has not been regarded as exclusively a judicial power is demon- strated by the observation that the General Assembly has always enacted procedural statutes even when statutes which purport to lodge the rule- making power in the courts are in force. In 1843 the Indiana legislature first attempted to define the author- ity of the supreme court in the field of procedure. In the Revised Stat- utes of that year,4 broad powers were conferred on the court, including the power to prescribe rules governing practice and procedure in Indiana trial courts.' This statute, however, was not regarded as a grant of ex- clusive power, for procedural statutes were enacted in the same session of the General Assembly.' In the Indiana Constitution of 1851 the legislature was given authority to study the need for procedural reform.7 From this study the 2. IND. CONST. art. 2 (1816) : No person or department may exercise "any power properly attached to either of the others except as herein expressly permitted." The separation of powers clause is art. 3 of the constitution of 1851. 3. IND. COST.art. 5 (1816). The judicial power is contained in art. 7 of the con- stitution of 1851. Although Indiana courts have not expressly referred to it, the practice of English courts in prescribing rules has been regarded by some courts as a historical basis of the rule-making power. See, e. g., an early expression of this view by the United States Supreme Court in Hayburn's Case, 2 Dall. 409, 1 L. Ed 436 (1792) : "The Court considers the practice of the courts of King's Bench and Chancery in England, as affording outlines for the practice of this Court; and that they will, from time to time, make such alterations therein, as circumstances may render necessary." (2 Dall. at 413). In Hanna v. Mitchell, 202 App. Div. 504, 512, 196 N.Y.S. 43, 52 (1922), aff'd. 235 N.Y. 534, 139 N.E. 724 (1923), it was stated that the power of courts to prescribe rules of procedure was "inherent in the courts of King's Bench, Common Pleas and Exchequer of England and would have been conferred without express grant of such power. .. ." The validity of analogizing between English and American court structures has been questioned. See note The Inherent Power of Courts to Formulate Rules of Practice, 29 ILL. L. REv. 911 (1935). In this note it is argued that the power of supreme courts to prescribe rules for trial court practice cannot be derived from the English practice because of the independent status of many American constitutional courts. While the House of Lords exercises control over the court of IK-ng's Bench, most state supreme courts in the United States are constitutionally independent. They are, unlike English courts, in no sense agents of the executive or Legislative Departments. 4. IND. REv. STAT., c. 37, art. 1, § 81 (1843). 5. This power, however, apparently was never exercised. See WXILTROUT & FLANAGANT, op. cit. supra note 1, at 125. In this connection, see text following notes 54-61 infra. 6. IND. REv. STAT., c. 37, art. 1, § 53 (1843), (time for filing pleadings); § 51 (summons to defendant) ; 66 (depositions); 70 (time allowed for appeal from inter- locutory orders). 7. IND. CONST. art. 7, § 20: "Section 20-REVISION OF LAWS The General Assembly at its first session after the adoption of this Con- stitution, shall provide for the appointment of three Commissioners, whose duty NOTES Code of 1852 resulted.8 While it is arguable that this constitutional pro- vision provides that the legislature will be supreme in the field of pro- cedure, it does not appear that the legislature regarded the clause as a grant of exclusive power. It seems to have been viewed as a permissive grant of power to adopt a civil and criminal code, or if mandatory, to have been executed by the adoption of the 1852 Code.' The most comprehensive statute which granted rule-making power to the courts was enacted by the Indiana General Assembly in 1937.10 This statute, Chapter 91 of the Acts of 1937, granted power to the Indi- ana Supreme Court to prescribe rules of practice and procedure for its own practice and for the other courts in the state system."' Although it shall be, to revise, simplify, and abridge, the rules, practice, pleadings, and forms, of the courts of justice. And they shall provide for abolishing the distinct forms of action at law, now in use; and that justice shall be administered in a uniform mode of pleading, without distinction between law and equity. And the General Assembly may, also, make it the duty of said Commissioners to reduce into a systematic Code, the general statute law of the state; and said Commis- sioners shall report the result of their labors to the General Assembly, with such recommendations and suggestions, as to abridgment and amendment, as to such Commissioners may seem necessary or proper. 8. IND. REV. STAT. (1852). 9. 1 GAVIT, INDIANA PLEADING AND PRACTICE 1-37 (2d ed. 1950) [hereinafter cited as GAVIT]. This work contains a full development of the historical background of the rule-making power in Indiana. Gavit points out that when the code was re-enacted in 1881, a commission was selected by the Indiana Supreme Court pursuant to a statute enacted by the legislature in 1879. Id., at 39. 10. Ind. Acts, c. 91 (1937) ; (H. 70). IND. ANN. STAT. §§ 2-4718, 2-4719 (Bums 1951) : An act relating to procedure in the courts of this state, conferring powers upon the Supreme Court to make, prescribe, enforce, and promulgate rules and regulations in regard thereto; and repealing all laws in conflict therewith.
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