The morning call., 1891-12-24

|
under like conditions they point to nfecseIy OPP
| poste conclusions-it is a matter oil regret, pc
| cause OF the embarrassment 10 ensue 10 tne
| courts below IN the performance OF their duty In
| good faith to observe and carry out the under
| stood views of The court OF last resort.
QUESTION OF JUDICIAL POLICY.
Fffth-The argument contained In the major
| ity opinion. written by AIR. Justice Mcfarland.
| Is evidently founded In no small measure upon
| judicial policy. ..,.
| OF the appointment OF an elisor by the ffesiu-
Ing judge here the most Imminent DANGER TO
! the liberty and independence OF the individual
| citizen and striking picture Is drawn OF the
| possibilities 10 grow out OF the exercise OF inc
so-called :" oneman power - lhvolyt IT. SUI
| Jury.
he readily nut aside The power that appointed
the elisor was not in any sense QUE man power;
it was not mine but the power OF all the Twelve
poiniment; could do nothing and did do moth
| ing as Presiding Judge without the concur
NV tenure OF the place Of Presiding Judge is one
| without fixed term: hold it. and all my snc.
a' remains must hold . at he mere
| will OF his associates-the other eleven Judges
| OF the superior Court. -
by the Constitution Cart. vi. Sec. 6) to be an
| oificer chosen by his associates 10 act In that
| capacity-an officer "wh0 may be removed at
| their pleasure" II is the duty OF the Presiding
Judge of this court, and 1t Is one which may
| lake this occasion to observe have faithfully
| endeavored 10 perform. to make no order, even
| the most uninpor ant, known or believed not to
| be in accord with the wishes and views Of the
majority OF the couri, and applying this TO the
| appointment of an elisor here, II majority OF
| the court had at any time been OF the opinion
| thar that appointment was improvidently made,
! or If II coDtrayened their views upon the sub
iect. they might and doubtless would immedi-
| ately have so expressed themselves, and in such
case II would have become my duty TO defer 10
their wishes er resign the position oil Presldlng
| they might have removed me inBtaner.
mere statement OF these facts is an answer
| and complete one to all that has been said
| and often said by the opponents OF this inYeS-
| tigation of crimes committed as 10 the supposed
danger 10 the public involved In The appointment
| OF an elisor.
| DISTINGUISHED AUTHOR REBUKED.
AS an argument against the appointment OF
Mr.. Scott Ii Is not as found in the opinion OF
Justlce Mcfarland; and while such suggestion
| of danger to eitlzrn might have been supposed
| TO have impressed itself upon the minds OF even
| well-meaning persons who had not read the
| constitution-did not understand the organiza-
ton OF the eourt-and therefore did not know
that the power Of the Presiding Judge here Is
but shadow, it is a matter of no little surprise
that the distinguished author OF the majority
| opinion OF the Supreme Court, who had himself
taken so prominent part in the framing OF the
| constitution OF the State, should at the moment
| have so far forgotten the provision OF that in
strument as 10 have fallen into an error in this
| matter.
| what is done In this court Is the act Of the
twelve Judges elected by the people for com.
paratIvely short intervals of seryice-the ex-
| pressed apprehension of an abuse by this court
OF Its powers Is now put forward by another court
also elected by the people for comparatively long
| periods OF lime; aud being ouly seven In num-
| Der, any four of whom may finally reverse
| or annul the proceedings here.
II such considerations as these are to be digni
fed as arguments it might be suggested with a
| like degree or prOprety. that at some time in
| the unknown future, when the personne! OF the
| Supreme Court may not be SO distinguished for
| learning, ability and correct motives as happily
| at present, its power may be turned and per-
| Yered to acts OF oppression OF the individual
| citizen.
In other words. the argument INDUCED against
possible abuse OF power or the assumption of I'M
| authorized power in the court. would be OF GER
| tainly no less force when applied TO such assump
ton or abuse because possible TO be committed
| not subject to be reviewed by others, as the de-
| cisions OF this court may be.
| ARGUMENT OF PERIL.
| The argumentum alb perIcuIoso must therefore
fall, and as an argument II was but the introduce
| tion to the assertion by the Supreme Court OF
| judicial policy, aud one which that court be-
| leved would authorize It TO give 10 the statute
| empowering the court here TO appoint an elisor
strict construction-in other words, would justify
| a search by it for some authority by which the
Objectionable statute could be obstructed and re-
| strained.
| Accordingly the learned Justice begins: at
| Is apparent that the claim OF power under the
| said Section 226 to do the thing complained OF
| in the case at bar should be closely scrutnZed.
| and denied, unless the power be found 10 be
clearly given, for il 1t exists 1; Is most arbi-
| trary and dangerous power-one that eau easily
| lile"
This statement OF the process of reasoning by
! WHICH TIE validity OIL lie statute was 10 De Qe-
| ternined amounted to declaration in advance
| of the purpose of the Court to obstruct Its free
operation because of the supposed dangerous
| nature OF the power conferred. Now, whenever
a court approaches the consideration of stat
ute declaring Its purpose 10 closely serutinizs it
there Is no Instance which l can recall In which
| the statute survived the operation.
| The older books are full OF cases In which
courts have assumed 10 do this; in which the
| legislative will has been oyerriden and defeated
| by considerations OF judicial policy INDUCED by
the Court. and which, not being in accord with
| scrutnze 1t closely and usually TO deny that the
statute said anything unless 1t said IL CLEARLY"
| But al this day such methods of construction
may be said 10 be "inhibited, and out Of war
| raut."
| AN ELASTIC PROCESS.
The people OF this Staie speaking through the
| legislative department of the Government have
| expressly taken from our courts this dangerous
| method OF construction-lhls Procrustean plan
OF lengthening a statute shortening it so as TO
| adapt IL TO the courts views Of correct policy;
| yet the 226th section OF the Code of Civil Pro-
| cedure. where the authority to appoint an elisor
| is conferred, has been tortured In this manner,
| as may be readily seen upon perusing the ma
| membered that the Code of Civil Procedure de-
| eiares that this must be no longer done; the old
| rule OF construction Is expressly abrOgated by
| the statute, and a different "rule OF construe-
tion OF code" substituted code OF Civil Proceed
| ure, Section ~.
| Ii is there provided that statutes shall not be
| strictly construed because in derogation of the
| common law and further "Ihe code contains
| the law of this State respecting subjects to
which 1t relates, and its provisions and all pro-
ceeding under it are TO be literally construed
| with view TO effect its objects and TO promote
| Justice"
Notwithstanding this plain and binding pro-
| vision OF our law, !he learned Justice announces
| that his deliberate purpose is not to construe
Section 226 with view 10 effect Its objects or to
| promote justice; bur, on the contrary. TO con.
| strue 1t strictly and with view to defeat IL, be-
| cause oil the dangerous power he conceiyes it to
| confer.
am Of course very far from attributing to the
| learned Justice any motive or purpose other
| than what appeared TO him good one 10 be ef.
| fected by applying his rule of construction. L
| only point out that by positive provision of our
law IL is the declared policy of the statute itself
which must be taken and accepted by all courts
as the proper policy aud the policy which
must govern their decisions in constituting the
| statute. In short. that legislative policy must be
adopted by the court; and its own policy, how
ever good that policy may seem to il, must not be
| substituted for the legislative policy.
AN INCoMPREHENsIBLE MISTAKE.
| The learned Justice remarks that 1.-The thought
Of the Legislature which enacted the provision
| (Section 226 of the Code OF Civil Proeedure)
| would seem 10 have b-en directed more parties
larly TO trial rather than grand jurirs'; il is
| such mistake. In view OF the positive provision
OF section 242 of the same code, where it is ex-
| pressy provided that the method OF filling the
| panel or a Grand jury shall be that provided In
Section 226.
How is the thought of the Legislature TO be
ascertained except by the enactment they have
made, by Tie language they have employed?
In the case of Cowles vs. the People of the
| State OF New York, decided In 1881, the Court of
/ Appeals of New York held the following Ian
guage touching this rule OF constructions: But
even in the penal laws the intention of the Leg
islature is the hest method to construe the law
though truly. that is to be deduced from all the
words that IL uses"
| Again. the learned Justice observes as follows:
| " 1t would indeed be startling II n man should be
put to the partial ignominy aud hazard of trial
| at the VIII OF any set OF men whom court might
choose TO style Grand jury"
| GOOD LAWYERS THINK OTHERWISE.
| AS against this expression oppose the unanl.
| nous decision of the seven Judges of the Court
al New Nnrk M Sfato
court stands higher Tor learning, ability and in
tegrlty than The Court OF Appeals OF that State.
| Now, IN the case OF the People vs.. Petrea, %
| New York Reports, page 1928, there came be-
| lore that great trihRnal sanneal xear