Arizona republican., 1911-08-16

individuals they will follow the stat ute or the unwritten law if no stat ute applies, and they take the u1 written law growing out of trad.- tion and custom from previous jude ial decisions.
 If statute or ordinance affecting acted. because it violates the consli- tuition adopted by the people, then they must ignore the statute and de- eide the question as if the sta,Lte had not been passed Their powe- is a judicial power. imposed by the ps"- De on the judges by the written con stitution.
 JUDGES AND LEGISLATURE.
 In early days some argued that the obligations Of the constitution opc'GIt ed secretly on the conscience of tha legislature and only in that manner, and that it was to be conclusivelv presumed that whatever was done by the legislature was constitutional. But such view did not obtain with our hard headed, courageous and far sighted statesmen ard judges, and it of judges in cases properly arising before them to apply the law and so to declare what was the law, and that if what purported to be statu- tory law was at variance with the fundamental law, Ii e., the constitu- tion. the seeming statute was not law at all. was not binding on the courts. the individuals or any branch of the government and that it was the duty of the judge so to decide.
 This power conferred on the ju dietary in our form of government is unique in the history of governments, and its operation has attracted and deserved the admiration and cOmmen- dations of the world. It gives to our judiciary a position, higher, strongec and more responsible than that of the judiciary of any other country and more effectively secures adherence 10 the fundamental will of the people. JUDICIARY MUST HAVE COURAGE.
 What I have said has been to little purpose if it has not shown that judges. to fulfill their functions prop erly in our popular government must be more independent than in any oth- CT form of government and that need of independence is greatest where the individual is one litigant and the state. guided by the successful and governing majority, is the other. h order to maintain the rights of the majority and of the individual ano | to preserve our constitutional basis we must have judges with courage to | decide against the majority when jus tice and law require
 By the recall in the Arizona con stitution, it is proposed to give to the majority power to remove arbi- trarily and without delay any judge who may have the courage to render an unpopular decision.
 By the recall 1t is proposed to en- able q minority of 25 per cent of the voters of the district or state, for no prescribed cause. after the judge has been in office six months. to submit the question of his retention in of flee. to the electorate. The petition ing minority must say on the ballot what they can against him in POD words, and he must defend as best he 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 the acts of the judge, but also on the question whether some other and more popular candidate has ben found to unseat him. VICTIMS OF GUSTS or PASSiON. |
 Could there be a system more in- geniousIv devised to subject judges | to momentary gusts of popular pas sion than this. We can not be blind | to the fact that often an intelligent | and respectable community may be so aroused over an issue that II | will visit with condemnation the de- cision of a just judge. though eX- actly in accord with the law gov erning the case, merely because 1t affects their consent unfavorably.
 Controversies over elections, labor troubles. racial or religious issues, issues as to the construction or con- stitutiOnality of liquor laws, criminal trials of popular or unpopular de- fepdants. the removal of county seats. suits by individuals to main | tain their constitutional rights in obstruction of some popular move ment-these and many other cases could be cited in which a. majority of |. district electorate would be tempt