The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-12-08

ton or temporary restraining order
issue otherwise than on notice. except
where irreparable injury would other
wise result, and in such case hear
ing on the merits of the order should
be had within a short fixed period.
and if not then continued after hear
ing it should forthwith lapse. Deci-
sions should be rendered Immediately
and the chance of delay minimized in
every way. Moreover, l believe that
the procedure should be sharply de-
fined and the judge required minutely
to state the particulars both of his
action and of his reasons therefor, so
that the congress can, if it desires, ex-
anime and investigate the same.
The chief lawmakers of our country
may be and often are the judges, be-
cause they are the final seat of au-
thority. Every time they interpret con-
tract, property, vested rights, due
process of law, liberty, they necessarily
enact into law parts of a system of
social philosophy, and, as such inter
probation is fundamental, they give
direction to all lawmaking. The de-
cisions of the courts ON economic and
social questions depend upon their
for the peaceful progress of our peo-
pie during the twentieth century we
shall owe most to those judges who
hold to a twentieth century economic
and social philosophy and not to a
long outgrown philosophy which was
itself the product of primitive econom-
ic conditions. OF course a judges
views on progressive social philosophy
are entirely second in Importance to
his possession of high and fine char
acter, which means the possession of
such elementary virtues as honesty,
courage and fair mindedness. The
Judge who owes his election to pander-
ing to demagogic sentiments or class
hatreds and prejudices and the judge
who owes either his election or his
appointment to the money or the favor
of a great corporation are alike I'M
worthy to sit on the bench, are alike
traitors to the people, and no pro-
fundity of legal learning or correctness
of abstract conviction on questions of
public policy can serve as an Offset to
such shortcomings. But it is also true
that judges, like executives and legis-
lators, should hold sound views on the
questions of public policy which are of
vital interest to the people.
The legislators and executives are
chosen to represent the people in en-
acting and administering the laws.
The judges are not chosen to represent
the people in this sense. Their func-
ton is to interpret the laws. The legis-
lators are responsible for the laws, the
judges for the spirit in which they in
terpret and enforce the laws. We
stand aloof from the reckless agitators
who would make the judges mere phi
ant tools of popular prejudice and pas
sion, and we stand aloof from those
equally unwise partisans of reaction
and privilege who deny the PROPOSE
ton that, inasmuch as judges are chosen
to serve the interests of the whole peo-
pie, they should strive to find out what
those interests are and, so far as they
conscientiously can, should strive to
give effect to popular conviction when
deliberately and duly expressed by the
body. The courts are to be
highly commended and stanchly up
held when they set their faces against
wrongdoing or tyranny by a majority,
but they are to be blamed when they
ACSO3AAA0C
like ours the deliberate Judgment of
the majority as to a matter of legiti-
mate policy when duly expressed by
the legislature. Such lawfully ex-
pressed and deliberate judgment should
be given effect by the courts save in
the extreme and exceptional cases
where there has been a clear violation
of a constitutional provision. Any
thing like frivolity or wantonnesS in
upsetting such clearly taken govern
mental action is a grave offense against
the republic. To protest against tyran-
ny, to protect minorities from oppres-
sion, to nullify an act committed in a
spasm of popular fury, is to render
service to the republic. But for the
courts to arrogate to themselves func-
tions which properly belong to the leg
islative bodies is all wrong and in the
end works mischief. The people should
not be permitted to pardon evil and
slipshod legislation on the theory that
the court will set it right They should
be taught that the right way to get rid
of a bad law is to have the legislature
repeal it and not to have the courts by
ingenious hair splitting nullify it. A
law may be unwise and improper, but
it should not for these reasons be de-
clared unconstitutional by a strained
for the result of such
action is to take away from the people
at large their sense of responsibility
and ultimately to destroy their capac-
lty for orderly self restraint and self
government. Under such a popular
government as ours, founded on the
theory that in the long run the will of
the people is supreme, the ultimate
safety of the nation can only rest in
and guiding the people so that