Weekly journal-miner., 1911-08-23

tween individuals, they will follow the statute or the unwritten law if no statute applies, and they take the unwritten law growing out of tradi- tions and customs from previous judi eial decisions.
 If a statute or ordinance affecting a case before them is not lawfully enacted because it violates the con stitutiOn adopted by the people they then must ignore the statute and de- eide the question as if the statute had not been passed. Their power is a judiciary power impressed by the people on the judgment by the writ ten constitution.
 In an early day some argued that the objections of the constitution Op- erated secretly on the conscience of the legislature and only in that mat ter. and that it was to be cOnclusively assumed that whatever was done by the legislature was constitutional. But such view did not obtain with our hard headed courageous and far-sighted statesmen and judges and it soon was in eases properly arraigned before them to apply the law and so to de- clare what was the law and that if what purpOrted to be statute or law was at variance with the fundamental law. i. e., the constitution, the seem- ing statute was not law at all. was not binding on the courts, the indi- viduals or any branch of government and that is was the duty of the judge so to decide.
 This power conferred on the judi ciary in our form of government is unique in history of government and its operation has attracted and de- served the admiration and cOmmenda tions of the world. It gives our judi ciary a position more strong and more responsible than that of the judiciary of any other country and more effective and surer adherence to the fundamental will of the people.
 What I have said has been to little purpose if it was not shown that judges to fulfill their functions prop erly in our popular government must be more independent than in any Oth- CT foreign 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. In order to maintain the rights of the majority and of the individual and to preserve our independent basis we must have judges with courage to de eide against the majority when justice and law require.
 By the recall in the Arizona con stitutiOn it is proposed to give to the power to remove arbitrarily and without delay any judge who may not have the courage to render an impartial decision.
 By the recall it is proposed to en- able minority of 9 per cent of the voters of the district or state for no cause after the judge has been in office six months to submit the ques- tion of his retention in office to the electorate. The petitioning minority must say on the ballot what they can against him in 200 words and he must defend as best he can ao in the same space.
 Candidates are permitted to present themselves and have their names printed on the ballot. so that the re call is not based solely on the record i or the acts of the judge but also on the question whether some other and ! more popular candidate has been found to unseat him.
 Could there be a system more in 5ehlOuSly deNlsed 10 SuDJect judges 10 | gusts of popular passion than this? We can not be blind to he fact that often an intelligent and community may be so ex- .ited over an issue that it win visit with condemnation the decision of ust judge though exactly in accord lnee with law governing the case merely because it affects their con est unfavOrably.
 Controversies over elections, labor racial or religious issues, issues ty of liquor laws, criminal trials of