pleading. The delay was because of the activity of the court and not because of the pleading. One judge would continue a demurrer until the next term of court, to be argued, and still another judge would require counsel to argue it before the court at that time and pass on it immediately. That is not a question of the pleading; it is a question of what the judge would do.

Mr. CUMMINGS. Mr. Ramsay, delay in the administration of justice is the outstanding defect of our judicial system. It is due, in part, to a lack of judges; it is due, in part, to an obsolete procedure, and it is due in part to a lack of adequate judicial machinery for handling the affairs of the Federal judiciary.

I decline to ascribe the failure to any one cause. I think there are several causes, and this is one of them.

Mr. RAMSAY. Mr. Attorney General, should not the pleading that is used in the Federal courts be for the benefit of the lawyers of that State and not for the benefit of those in some other State? In other words, is not a lawyer who goes into the Federal court, who is a resident of the district or the State, much more familiar with the practice there than he could possibly be with this practice?

Mr. CUMMINGS. I think that is entirely an erroneous assumption, Mr. Ramsay. I think that this is an understandable procedure, and I believe there are lawyers in West Virginia, if I may say so, that do not understand the practice of West Virginia, even now. But no lawyer of competence can fail to understand this practice, with just a little consideration and study.

Mr. RAMSAY. That may be true, but is it not a fact that the average lawyer probably only goes into Federal court once or twice a year, while he is in the State court practically every day, and is familiar with the State practice, and every time he would have to try a case in the Federal court, he would have to study these rules?

Mr. CUMMINGS. That is a narrow viewpoint, if I may say so, of a national problem. We have upward of 50,000 untried cases in the Federal courts, so I am trying to look at this problem as a national problem, affecting our Federal courts as a whole, and not from the standpoint of an individual lawyer who has two or three cases in some particular court.

Mr. RAMSAY. Take rule 17 (b), for instance. You say this is easy to understand.

Under the heading "Capacity to sue or be sued," it says:

The capacity of an individual, other than one acting in a representative capacity to sue or be sued shall be determined by the law of his domicile.

There, he must know the law of his State.

It also says:

The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.

Therefore, he has to learn the law of the State where the corporation was organized. That is one instance.

Mr. CUMMINGS. He would have to do that under the present practice.

Mr. RAMSAY. Does not that make it more conflicting?

Mr. CUMMINGS. Not more conflicting, but just the same in that respect.

Mr. CHANDLER. As I understand the extent of this hearing, it is to consider these proposed rules of civil procedure, and at the same

time to consider H. R. 8892, introduced by Representative Ramsay, a member of the Committee on the Judiciary. If that is a correct understanding, I think we should bear in mind that the purpose of H. R. 8892 was more to give us the benefit of the judgment of the witnesses as touching that particular bill.

Mr. RAMSAY. Some of the provisions of that bill are not included in the pleading and practice procedure. They go beyond that.

Mr. WEAVER (presiding). Of course, the bill introduced by Mr. Ramsay is before this committee in connection with the rules themselves.

I might call the attention of the gentlemen present also to the fact that we also have before us a resolution adopted at the last session of Congress by the House and a similar resolution was also adopted by the Senate-Resolution 287, which charges this committee with the duty of making certain investigations with regard to the judiciary, and includes the subject of procedure and costs.

Under this resolution we are charged also with the duty of making this investigation at this session of Congress and making a report to the Congress, as to any legislation that we might deem advisable.

Naturally, in the discharge of that duty, we would appreciate any suggestion from any gentlemen who may appear before this committee with regard to the purposes of the resolution.

So we have three things before the committee at this time.

Mr. MASSINGALE. Mr. Attorney General, I am wondering if, when this matter was given consideration by the Court, the American Bar Association, and other lawyers working out the plan, consideration was given to the general condition of law practice and law business throughout the Union in this respect, to which I would like to call your attention.

In the country, I know, because that is where I come from, a lawyer usually feels that he has accomplished something when he has been engaged to try a matter in a Federal court.

It is an unusual thing for the average country lawyer to be engaged in trial work in a Federal court.

Country lawyers, as a rule, are not able to make very much money. I dare say that the average, fairly well informed country lawyer does not make money enough to carry in his library the Federal reports, including the Reports of the Supreme Court of the United States. He can hardly make enough to supply himself with the statutes of the United States and the notes and digests in regard to Federal law. and the holdings of the courts.

Do you not think that would operate to the prejudice of that class of lawyers of whom I speak?

Mr. CUMMINGS. No, sir; I think it would help such a lawyer. Here he would have a very simple practice which he could easily understand.

Mr. MASSINGALE. I will give you my reaction to that statement of yours. I am not discussing anything but the general policy of the law.

I presume, as you say, a country lawyer can take these rules and soon familiarize himself with them, but I think if you have a uniform system of laws, that take a fellow clear out of the domain of State practice, that then you minimize the chances of a country lawyer ever getting into a Federal court.

The CHAIRMAN. He can get a copy of the rules from his Congressman, and he can carry the whole thing around in his inside coat pocket. Mr. MASSINGALE. Then he will carry the chances of getting into Federal court in his inside pocket.

The CHAIRMAN. That is a very good place to have them.

Mr. MASSINGALE. My point is that unless he gets in there through the connection he has with some lawyer, say like these fellows who drew these rules, he will never get in there.

A man in New York or in Chicago is not going down into the country to get a country lawyer to take his business in the Federal court unless he has to do it. A lawyer could leave his office in New York and go down to Oklahoma, or anywhere else and go into court there, and it is as easy for him to do that as it is for him to get a lawyer there, and you just cut the local lawyer out of a job.

Mr. ROBSION. Referring to rule 17, which says, in paragraph (b), "The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized." In my State of Kentucky a great many corporations are organized under the laws of Delaware. Suppose the Legislature of Delaware would provide conditions that would make it difficult to reach a corporation operating in Kentucky. What does that mean; how far does that go?

Mr. CUMMINGS. If I understand the rule correctly, it preserves the present law.

Mr. ROBSION. It may preserve the present rule

Mr. CUMMINGS (interposing). It might be that there ought to be another rule, but those who drafted the rules could tell you the history of rule 17.

Mr. ROBSION. This is the thought that is in my mind. The State of Delaware evidently has passed acts that make it desirable for persons throughout the Nation to incorporate in the State of Delaware. Could not a corporation organized in the State of Delaware enlarge its benefits under Delaware incorporation?

I want to know how far the State could reach under this rule to keep litigants from other States from reaching such corporations at all. The CHAIRMAN. What rule do you refer to?

Mr. CUMMINGS. Mr. Chairman, as I recall, the language to which reference has been made was inserted because the Federal Government might organize a corporation for the performance of certain governmental work, that might or might not have the power of suing, depending upon the language of the act creating the corporation.

The idea there, I suspect, has reference not to State corporations, but to the possibility of the formation of governmental corporations.

Mr. ROBSION. It is not limited; it says, "The capacity of a corporation to sue or be sued."

Mr. CUMMINGS. I was not present when this provision was formulated.

The CHAIRMAN. If there is anybody in your group who has had more direct contact with it, they may be called upon at this hearing. Mr. CUMMINGS. I think Dean Clark could tell you exactly why rule 17 is in its present form. I think it is because some agencies of the Government have asked that the rule take its present form.

Mr. ROBSION. In that connection, I invite attention to another clause in rule 17 that may answer that question. In paragraph (b) it says:

In all other cases capacity to sue or be sued shall be determined by the law of the State in which the district court is held; except that a partnership or other unincorporated association, which has no such capacity by the law of such State, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States.

What I am directing my attention especially to is this. Take, for instance, the United Mine Workers, or the Brotherhood of Railway Trainmen. In many States they cannot be sued.

The CHAIRMAN. Will Dean Clark answer that question?

Mr. ROBSION. Under this section, it really gives the right of action: against the United Mine Workers.

Mr. CUMMINGS. That is an erroneous assumption. Under the Coronado case, decided by the Supreme Court of the United States, the rule here set forth is the rule approved by the Court in that litigation. It is merely declaratory of the present law.

Mr. ROBSION. But under our State law in Kentucky and under the State law in many other States you cannot reach an association like the United Mine Workers.

Mr. CUMMINGS. But you could in the Federal courts.

Mr. RAMSAY. In those States you have to notify all of those people you desire to sue. You have to sue all the individuals in that unincorporated corporation, all of them.

Mr. ROBвSION. This gives the right to use the name of the association, and leaves out the question of individuals.

The CHAIRMAN. If Dean Clark is familiar with that section, we will be glad to have him answer that question.

STATEMENT OF DEAN CHARLES E. CLARK, YALE UNIVERSITY LAW SCHOOL, REPORTER, ADVISORY COMMITTEE ON RULES FOR CIVIL PROCEDURE APPOINTED BY THE SUPREME COURT

Mr. CLARK. Mr. Chairman and gentlemen, on the question of the capacity of a corporation to sue, what the committee was planning to do, or planning to say, was to make a clear statement of what would be substantially the present law.

It is true, as the Attorney General has said, that instead of putting in here a provision that any corporation could sue, we had to put in this restriction because there may be Federal governmental corporations, or there might be under some State laws State governmental corporations which do not have the full capacity to sue. So we put

the rule in this form, which I think does state the general law as it now exists.

One of the gentlemen on the committee asked if that would not give Delaware the authority to authorize a corporation to go into New York in violation of the State law of New York. It seems to me that is a misstatement of the ordinary meaning of the word "capacity.". The word "capacity" goes back to the original grant to the corporation, which is created in this case by Delaware, of conditions under which it can exist and do business, or under which it can act at home as well as in other States.

Mr. ROBSION. I am not raising that question. It is the capacity of the corporation to sue or be sued that I am referring to. How can you reach that question?

Mr. RAMSAY. Does not this permit Delaware, for instance, to pass laws saying how that corporation can sue or be sued? Is not that what the language says?

Mr. CLARK. I do not think it has that effect.

Mr. RAMSAY. You do not think so? Are we not going to take up all these provisions and have fights over them in the Supreme Court to determine what they mean? Then you say that this is clear.

Mr. CLARK. Of course, Congressman, I have no authority to try to say finally what the rules mean. They have gone out of the hands of the committee. I can only say what I believe they mean. I have no authority to construe them.

Mr. RAMSAY. You can see that average minds do not meet in their interpretation.

If what you say is true, will it not require a lot of litigation to finally decide what the rules mean?

Mr. CLARK. Might I say one thing more?

Mr. ROBSION. When you say "a corporation" does not that include all corporations?

Mr. CLARK. I wanted to call the attention of the committee to the case in the Supreme Court of David Lupton's Sons Co., which is a case in which the Court held that when a corporation goes into another State to do business it cannot be prevented by the law of that State from suing. The State may prevent its doing business within the State except on the compliance with certain conditions; but if the State permits the corporation to do business it then cannot take away the right of suit, as a penalty when the corporation has done something that the State feels should not be permitted. That case is a decision of the Supreme Court, cited in the notes of the advisory committee as being stated in this section of the rules. It seems to me that this is a statement of the rule as it is worked out in that case. That case is found in 225 U. S., page 489.

It seems to me, therefore, in the light of that leading case by the Supreme Court, that the rule just states the existing practice.

There is just one other thing I would like to say in reference to the last section.

Mr. CELLER. If a corporation is chartered, say, in Delaware, is that the domicile of that corporation?

Mr. CLARK. Yes.

Mr. CELLER. Suppose the Delaware charter says that this corporation can only be sued in the State of Delaware; could it be sued in the State of New York, if it does business in New York?

Mr. CLARK. I do not know, of course, how that would ultimately be construed. I cannot answer as to the final construction of these rules. But

Mr. CELLER. What is your interpretation of the rule as you have it before you now, as it was read to you this morning?

Mr. CLARK. I should expect that in that case, if the corporation is allowed to do business outside of the State of Delaware, that provision of the Delaware charter would not be valid.

Mr. CELLER. The rule says:

The capacity of a corporation to sue or be sued shall be determined by the law under which it was organized.

That seems to be pretty clear.