El Paso herald. (El Paso, Tex.) 1901-1931, 1911-08-15


and of the Individual in his relation
to other individuals and in his re-
lation to the whole people in their
character as a state or government.
The Functions of Government.
The constitution distributes the
functions of government into three
branches-the legislative. to make
these laws; the executive, to execute
them; and the judicial to decide in
cases arising before It the rights of
the individual as between him and
others and as between him and the
government.
This division Of government into
three separate branches has always
been regarded as great security for
the maintenance OF free institutions,
and the security is only firm and as
sured when the judicial branch Is in
dependent and impartial
The legislative and executive
branches are representative of the ma
jority of people which elected them
in guiding the course Of the govern
ment within the limits of the consti-
tuition They must act for. the whole
people. of course, but they may pro-
perly follow, and usually ought to fol-
low, the views of the majority which
elected them in respect to the gov
ernmental policy best adapted to Sc
cure the welfare Of the whole peo-
pie.
But the judicial branch of the gov
eminent is not representative OF
majority of the people in any such
sense, even If the mode Of electing
judges Is by popular election. In
proper sense, judges are servants of
the people; that is, they are doing
work which must be done for the gov
eminent and in the interest Of all the
people, but it is not work in the do
ing Of which they are to follow the
wills Of the majority except as that
is embodied in statutes lawfully en-
acted according to constitutional lini-
tations.
tives. On the contrary, they must be
Independent. They must decide every
question which comes before them ac-
cording to law and justice. IL this
question is between individuals they
will follow the state, or the unwrft-
ten law if no statute applies and they
take the unwritten law growing out of
tradition and custom from previous
judicial decisions.
II statute or ordinance affecting
a case before them is unlawfully en-
acted, because it violates the consti-
tuition adopted by the people. then
they must ignore the statute and de-
eide 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 consti-
tuition.
In early days, some argued that the
obligations Of the constitution operat-
ed directly on the conscience of the
legislature and only in that matter.
and that it was to be conclusively
presumed that whatever was done by
the legislature was constitutional But
such a view did not obtain with our
hard-headed, courageous and far
sighted statesmen and judges, and 1t
was soon settled that it was the duty
of judges in cases properly arising be-
fore them to apply the law, and that
if what purported to be statutory law
was at variance with the fundamental
law, 1. G., the constitution, the SEEM
ing statute was not law at all, and
was not binding on the courts, the in
dividuals, or any branch of the gov
eminent, and that it was the duty of
the Judge so to decide.
This power conferred on the judi
ciary in our form of government is
unique in the history of governments,
and it's operation has attracted and de-
served the admiration and commenda-
ton of the world. 1t gives to our ju-
dietary position higher, stronger and
more responsible than that OF the ju-
dietary of any other country, and more
effectively secures adherence to the
fundamental will of the people.
What I nave said has been to little
purpose if 1t has not shown that
judges. to fulfil their functions prop
erly in our popular government, must
be more Independent than in any other
form of government, and that need of
independence is greater where the in
dividual is one Itigant and the state,
guided by the successful and govern
ing majority, is the other. In order
to maintain the rights of the major
ity and of the individual and to pre-
serve our constitutional basis, we must
have judges with courage to decide
against the majority when justice and
law require.
The Arizona Recall.
BY the recall in the Arizona consti-
tuition 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 unpopu-
lar decision.
BY the recall it is proposed to en-
able a minority Of % 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 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 Of 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 system more in
,geniously devised to subject judges to
momentary gusts OF popular passion
than this? We cannot be blind to the
fact that often an intelligent and re-
spectacle electorate may be so reused
over an issue that it will visit with
condemnation the decision of just
judge, though exactly in accordance
with the law governing the case
merely because it affects unfavorab1y
their contest.
Controversies over elections, labor
troubles, racial or religious issues, is
sues as to the construction or con-
stitutionality of liquor laws, crimi-
nal trials Of popular or unpopular de-
PENDANTS, the removal of county seats
or suits by individuals to maintain
their constitutional rights in obstruc-
ton of some popular improvement