The evening times., 1911-08-18

| UCAoAo lucLu W Apply lue law anu Sd
to declare what was the law, and If
what purported to be statutory law
was at variance with the fundamental
law, /. 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 the govern
ment, and that it was the duty of the
judges so to decide.
| This power conferred on the judi
ciary in our form of government is
unique in the history of governments,
! and its operation has attracted and
deserved the admiration and COM
mendation of the world. 1t gives to
our judiciary a position higher,
stronger and more responsible than
that of the judiciary of any other
country, and more effectively secures
adherence to the fundamental will of
the people.
What have said has been to little
purpose If it has not shown that judg-
es to fulfill their functions properly
in our popular government must be
more independent than in any other
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, 1t the other. In
order to maintain the rights of the
minority and the individual and to
We must have judges with courage to
decide against the majority when
justice and law require.
p1v Sh1
stitution it is proposed to give to the
majority power to remove arbitrarily
and without delay any Judge who may
have the courage to render an un-
popular decision. BY the recall it is
proposed to enable a minority of
twenty-five per cent of the voters of
the district or state, for no prescrib-
ed cause, after the Judge has been in
Office six months, to submit the ques-
ton 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 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
been found to unseat him. Could
there be a system more ingeniously
devised to subject judges to momen-
tary gusts of popular passion than
this?
We cannot be blind to the fact that
often an intelligent and respectable
electorate may be so reused upon an
issue that 1t will visit with condemns
ton the decision of just Judge.
though exactly in accord with the law
governing the case, merely because
lit affects unfayorably their contest.
Controversies over elections, labor
troubles. racial or religious issues, is
sues as to the construction or con-
stitutionality of liquor laws. criminal
trials Of popular or unpopular de-
fendants, the removal of county
seats, suits by individuals to main
tain their constitutional rights in OBJ
| struction Of some popular improve
ment-these and many other cases
| could be cited in which a majority Of
! district electorate would be tempt
ed by hasty anger to recall a consci-
entious Judge II the opportunity were
open all the time.
No period Of delay is interposed
for the abatement Of popular feeling.
The recall IL devised to encourage
quick action. and to lead the people
to strike while the iron Is hot. The
judge 10 treated as the instrument
and servant Of majority of the peo-
pie and subject to their momentary
will. not after long term In which
his qualities Al a Judge and his char
acter a. q man have been subjected
to test Of all the varieties Of Judi
cial work and duty 80 ~ to furnish Z
proper means Of measuring his fit-
jness for continuance in another term.