The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1895-10-10
THAT SUPERIOR COURT ACT.
Ex.judgc Hand Presents Reasons why
Me believes the Law to DO Valid Us 1t

Stands.
Editor of The Tribune.
Sir: There appears ito be on the part OF
some Of our politicians and some
lawyers considerable excitement In re-
gard to the stitutionality of the
clause in the act of the legislature
which provides that electors snail vote
for only six out of the seven candidates
for seats on the Superior bench. In
their desire to air their views they are
| disposed to disregard the law and vote
for seven instead of six. They ask the
Judge and inspectors of election to sit
! in Judgment on the constitutionality OF
the law, and usurp the functions OF the
Supreme bench. / do not understand
that the distinguished lawyer whose
partially published opinion has been
| cited in the newspapers has advised
any person to take this course. but has
merely expressed private opinion that
there was a possibility or probability
that the law In this regard may be de-
clared unconstitutional. The basis OF
this opinion is not an express mandate
of the constitution, but an inference OF
his own. The public press. which by
reason of its constant consideration of
| all questions and its practical view of
| things. Is quite as apt to be In touch
with the spirit and genius of our insti-
tutions as a technical lawyer however
| learned. so far as | have read it, has in
tuitively and wisely expressed its view
that the safer and wiser course Is to
obey the law and vote for six Allow
me to. say that whatever course may
be taken or decision made prior to the
election, the press has uttered not only
the common sense view of the case but
in all probability the law of the case
| 1t is of no earthly account what any
individual lawyer or layman. officer or
Judge may think OF the act Of assembly;
the sole question will be, and cannot
now be raised what the judges Of the
Supreme count. either a majority or by
a tie vote, may think. The law will stand
as constitutional and to be obeyed, un-
| til. by more than tie vote, those judges
say it must fall. The press says It is
safer to vote for six. OF course, for an
elector may vote for less than all the
officers to be voted for; he cannot vote
for more than the law provides without
multiplying his vote. Less than seven
judges elected in the way the law pro-
vides would hold their Offices. If they
We're all voted for by ballots in which
the electors voted for more than the
law prescribed. they ought to be all
thrown out. The reason for this will
appear from the considerations herein
after stated.
Valid Until Successfully Attacked.
Any act passed by the legislature and
signed by the governor becomes a valid
law. 1t Is constitutional until success
fully attacked and must be obeyed.
Herein Is a principle involved so great
that II the law Is disobeyed the Su-
preme court may. and perhaps ought.
in duty to set the disobedient act of the
individual aside. whatever may be
thought of the constltutionality Of the
law. 1t would be a monstrous doctrine
that individuals may violate q law, lex
cept one involving moral considerations
and conscience, and even then they
ought to submit gracefully to its penal
ty) simply on their own view that 1t Is
unconstitutional The great majority Of
our laws have never yet passed the
scrutiny of the Supreme bench in this
regard, and even IL they should and
were thought unconstitutional. they
would often be sustained on the ground
of communis error.
1t Is singular that so partial view
should be taken of the act creating the
Superior court. IT would be a misfor-
tune to the people II by any act or de-
cislon seven judges should be voted for.
1t Is for this reason, fear, that many
are solicitous to vote for seven and
thereby place on the bench, unless the
people act unpartisanly in voting, seven
men all of one political persuasion. 1t
would be a calamity. III the 200, 900
plurality vote Of Pennsylvania should
be held even up to the vote of a plu-
rality Of one it would certainly make
all the judges Republican. If the Su-
perlor court should anticipate this
question. which I have little expecta-
ton they will, 1t would not tbe i'm
possible that a reaction might take
place with the people which would
make all the judges Democratic. Such
things have taken place. Should such
he the result the only consolation left
the Republicans would be that we might
profit at the next reaction.
Unlikely TO Re OvcrthrOwn.
I have said That the statute is con-
stitutional until successfully attacked.
1t is mere than this. When attacked
it Is presumed to be constitutional all
along the series of bait es which must
culminate In the final consideration of
the Supreme court. This presumption
will remain in the heart Of each indi-
vidual Judge until upon all the facts
and all the laws Of the case presented
by the utmost skill of the advocates on
both sides the Judgment Is forced after
quiet and calm constdera ton from the
COuTt dS IL WnOle Ny HluyOfnty vote Lnat
the law must fall. This decision will
come not on single clause of the con-
stitution. there are no strict constitu-
tlonalists on the bench, they are all
among the lawyers; 1t will come on the
whole spirit and tenor OF that instru-
ment. This spirit and tenor will be
evolved first from the facts: What
was the object of the statute? What
remedy was sought? What Is the ma
ture and class Of the Superior court? Is
any right Of the citizen injured? Us It
a higher right to force upon such a
court a partisan judiciary, on the plea
of an electoral right, than to provide for
the imposDbillty or improbability Of
such an event? ETC., etc.
1t Is admitted by the distinguished
counsel whose opinion has been quoted
that minority representation Is provided
for the Supreme court. Tn this admis-
sion 1t may be urged he throws away his
own case. The constitution provides
for new courts and the change of courts
except in case Of the common pleas and
orphans court. There are two classes Of
courts, viz those Of appeal and final re-
l sort and those not Of appeal and final
resort. The Supreme court has hereto.
fore been the only one Of the first class.
What Ii the Superior court? It II now,