The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1911-08-15

| from previous judicial decisions.
If a statute or ordinance affecting a
case before them is not lawfully en-
acted. because it violates the constitu-
ton adopted by the people, then they
must ignore the statute and decide the
question as If the statute had never
been passed Their power is a judicial
power, imposed by the people on the
| judges by the written constitution.
In early days some argued that the
obligations of the constitution opera ted
! directly on the conscience of the legis-
lature and only in that matter, and
that it was to be conclusively presumed
| whatever was done by the legislature
was constitutional. But such a view
did not obtain with our hard-headed,
! coura geous and far-sighted statesmen
and judges, and it was soon settled that
it was the duty of judges in cases prop
/ erly arising before them to apply the
/ law and so to declare what was the
law. and that if what purported to be
statutory law was at variance with the
fundamental law, /. e., the constitution,
/ the seeming statute was not law at all,
was not binding on the courts, the in
ment and that it was the duty of the
judge so to decide.
Power Is Unique.
This power conferred on the judiciary
in our form of government is unique
in the history of governments, and its
operation mas dILIdCIeQ ana Q6SGINGQ
the admiration and commentator
of the world. 1t gives to our judiciary
a position higher. stronger and more
responsible than that of the judiciary
of any other other country, and more
effectively secures adherence to the
fundamental will of the people.
What I have said has been to little
purpose if it has not shown that
judges to fulfill their functions proper
ly in our popular government, must be
more independent than in any other
form of government and that need Of
independence is greatest where the in
dividual is one ntigant and the state,
guided by the successful and governing
majority, is the other. In order to
maintain the rights of the majority and
Of the Individual and to preserve our
constitutional balance, we must have
judges with courage to decide against
the majority when justice and law re-
quire.
By the recall in. the Arizona consti-
tuition, it is proposed t" give to the
majority power to remove arbitrarily
and without delay any judge who may
have the courage to render an unpOpu-
lar decision.
By the recall it is proposed to en-
able a majority of rs per cent of the
voters of the district or state. for no
prescribed cause after the judge has
been in office six montns. 20 submit
tic QuGSLlOl OL Ills I6lGAAlO11 III OlllCO
to the electorate. Tho petitioning
must say on tho ballot what
they can against him in 200 words. and
he must defend as best \ can in the
same space.
Other candidates are permitted to
present themselves and have their
names printed on the ballot. so that
the recall is not based solely on the
record or acts of the Judge. but also
on the question whether some other
and more popular candi1ats has been
found to unseat him.
Could there be a system more in
geniously devised to subject judges to
momentary gusts of popular passion
than this?
Possible Instances.
Controversies over elections, labor
troubles, racial or religious issues, is
sues as to the construction or consti- |
of liquor laws. criminal |
trials of popular or unpopular defend /
ants, the removal of county seats, suits
by individuals to maintain their con-
stitutiOnal rights in obstruction of
some popular these and
many other cases could be cited in
which a majority of a district elector-
ate would be tempted by hasty anger
to recall a conscientious judge if the
opportunity were open al the time
No period of delay is lnterposed for
I'll z eA1e1lC4AtEiAi VI pOpuidI l66llnS- lie
recall is devised to encou1 age quick ac-
ton, and to lead the people to strike
while the iron is hot. The Judge Is
treated as the instrument and servant
of majority of the people and sub
ject to their momentary will, not after
a long term in which his qualities as
a Judge and his character as a. man
have been subjected to test of all
the varieties of judicial work and duty
so as to furnish a proper means of
measuring his fitness for continuance
IN another term.
Think of the opportunity such a sys-
lem would give to unscrupuIous politi-
,al bosses in control, IS they have
oeen in control not only of conVen-
IONS but elections. Think of the
enormous power for evil given to the
undertaking portion of the
press in rousing prejudice against a
lust judge by false charges and insin-
lations, the effect of which in the
short period of an election by recall,
I would be impossible for him to meet
and offset
Supporters of such system seem to
mink 1t will work only iii the interest
IF the poor, the humble, the weak and
ne oppressed; that it will strike down
)nly the Judge who is supposed to
avor corporations and be affected by
ne corrupting influence of the rich.
Nothing could be further from the ulti-
nate result The motive It would offer
o INSCRIPTIONS combinations to seek
o control politics in order TO control
he judges is clear.
Those Who Would Benefit.
Those who will benefit by the recall
re those who have the best opportuni-
y to move the majority of the people
o acton on a sudden impulse Are
hey likely to be the wisest or the
est people in a community? Do they
lot include those who have money
hough to employ f1rebrards ami SLAM
erers IN community and the stirrers-