The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1898-10-28


speech Mr.. Phelan says:
I do not think that the courts are above
criticism, for have an elected judlclary
Are they to sit in their PLACES OF p any voice
The people are responsible for the character
of the Judges, and when they desert the cause
of the people we can bide our time ana beat
them when ley come up for reelection.
now Beat them and uphold the hands OF
good government. here is way OF inter.
there is a way of interpreting it against the
people When court arrogates TO Itself the
power TO say what the atins to itself
legislative power and is giving US what Is
known judge-made law.
Although not clearly expressed, the
meaning is unmistakable. The court Is
to take any view of the law Whlcn1 the
people at the time wish them to. They
are to listen to and heed popular cIaIaor.
That Mr.. PhelanS audience so UNDER
stood him there is no doubt.
His complaint is based upon the re-
cent decision in the case of FItch vs. the
the present Board of Supervisors remain
in office Mr.. Phelan and others had OBJ
tanned a judgment ousting them Inc
movement was inaugurated by Mr.. Phe-
Ian another gentleman who acted as
plaintiff in the suit brought for that pur>
pose and some few others-not more than
a dozen in all. That is not enough TO
warrant any of them in writing himself
1--WE, the people, and reviling the Judges
as deserters of the people when the court
renders an opinion adverse to their views.
The plaintiff in that action is a temper
ate, law-abiding citizen. He thought he
had law for the Judgment he obtained
But as yet he has not been heard to say
he wished the court to depart from well
settled rules and decide according to
clamor from the outside. So that 1t does
not appear but what I'VE, the people,
means Mr.. Phelan himself.
Therefore, even assuming that the court
should heed popular clamor, it does not
yet appear that the people have spoken.
But l wish to take issue at the very
outset with the speaker upon the propo-
sition that the court should heed popular
clamor from any source whatever. me
Justices are put there to say what the
law is; not to interpret it with favor to
any side. If the people have right to
be heard In any other manner through
their chosen representative. the Attorney
General, they have right to speak per-
sonally, for themselves, and no single one
can be excluded from the court Ihey
have a right to parade through the halls
of justice, as did the Paris mob through
the chamber of the National Assembly,
bers and threats to do what they wish in
the excitement of the moment-to do
what the cooler judgment Of i. the people
respect can permit this. Every Judge
whose name is spoken with honor has
refused to be Influenced by popular
clamor, while every one who has bark
ened to it is mentioned with contempt.
Mr. Phelan is in error when he says
the court has no right to arrogate TO it
self the power to say what the lawmakers
intended to enact That is just what they
are there for. And that intention, as 1t
has many times been said, is TO be as
itself; by reference to the law repealed,
to see what it was intended to abolish
and the decisions in former cases: These
cannot choose but follow 1t has no
right to depart from it even for the &C
complishment of a temporary good, and
a temDOrarV e.
The people of this State have made
constitution which provides that we shall
have a Legislature to MAKE the laws:
courts to interpret them, and say what
they mean not always easy; and an ex-
ecutive to carry them out When the
court departs from the terms of the law
to effect temporary good, 1t nullif1es it
to that extent. and since succeeding
courts must follow the construction thus
given the court in effect amends the law.
This is to trench upon the province of the
Legislature and to make, rather than in
terpret, the law. 1t is impertinent and
unlawful.
The court has only to say what the law
is. If it is wrong, the people will take
care of that in the house of their elected
delegates--the Legislature. The court is
not called upon by the constitution to
what it is, in order that they may amend
it If it does not suit them.
Even a bad law is binding until repeal
ed 1t is binding upon the court and
upon every citizen. 1t is the law-abiding
spirit which uphods officers and courts
in enforcing statute, until changed in
an orderly and legal manner which
makes self-government a success among
Anglo-Saxon peoples, and so difficult
among the Latins Such 4b people allow no
with the pursuit of the present object.
He is no friend who urges us to follow
such examples. Without this law-abiding
spirit, the most solemn constitutions and
laws make but rope of sand; and any
thing which weakens the sentiment, even
for hn fC-f hi feaF,1V
Is distinct injury to the foundation OF
our institutions.
1t is a fact which Mr. Phelan does not
mention that not one word of either the
main or the concurring opinion in the de-
cision referred to was written by either
! of the Justices now arraigned. 1t was
| Judges. They merely said 1--WE concur"
In view of this his condemnation extends
the wf9e f9uF ea 70 en a Of hg
deserted the people? Is it not more like
! ly that one man-Mr. Phelan-is misled
by passion, or disappointment, or error
Of judgment?
There is one gentleman in the court who
| is Democrat; and whose honesty. good
never been questioned. Justice Temple,
also concurred in the opinion; he said, II
! concur" Yet for holding the same opin-
| ion as this eminent jurist, Justices Van
Fleet and Mcfarland are reviled as be-
trayers of the people, who should be beat
/ en- at the polls.
! In conclusion, word or two as to the
4 much criticized decision.
| The constitution provides that the Board
| of Supervisors shall fix water rates in
! February of each year., and that they
/ shall take effect upon the first of July
next thereafter The Legislature added
i as a penalty, that If the board did not
! fix the rates it should be convicted of
malfeasance in office and ousted. That
/ suit for that purpose could be brought by
4 any interested party. The board did not
! fix the rates in February, but did before
/ the LIST of July. and when the time came
1 there were new rates to go into effect
/ at the time provided by law. On July
Is, which was after the duty entoined by
law had been performed, Mr., Fitchs suit
was brought. The court said the term
interested party" means some one who
is harmed by the failure of the board to
act That when the suit was brought the
rates had been fixed, and were in force,
I and that the plaintiff was, therefore. not
damaged, and so not an interested party
within the meaning of the law. Before
! July l the old rates were in force. Upon
! the 1st of July the new ones were ready;
| so that whoever else might have a right
/ to complain, ratepayer. could not, for
/ the simple reason that all he could ask
was that he know at the proper time
how much could be lawfully taken from
| him for tha water uSed Mr. Fitch sued