New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1912-12-18
"REoALL" IN THE COAL CASE.

"RECALL" IN THE COAL CASE.
A timely illustration of the state of
mind behind the demand for the recall
OF decisions is furnished by some Pro-
gTesSive expressions concerning the
Supreme Court ruling i'm the coal trust
case. Undoubtedly great many per
sons are disappointed because the
court did not find proof OF the exist
.ence Of a general trust as charged by
the government. The PrOgressiyes take
advantage Of that situation TO suggest
that II the people had their rights the
views Of six men would not stand in
the way Of the comfort OF millions.
They ask how many persons who voted
FOR Mr.. Taft are now wishing they
lcould recall decisions, AT least could
.recall this decision.
No doubt that Is q representatives.
Progressive attitude on the subject. IT
IS also a progressively Progressive one.
Mr.. Roosevelt up 10 election time spe-
officially confined his recall programme
10 decisions of state courts setting
aside laws eS unconstitutional. He
would have denounced as misrepre-
senting the party any suggestion that
ordinary decisions ON questions of fact
could be reversed 10y popular vote.
His plan, we were told, was merely an
easier way 70 amend state cOnstitu-
lions and not I'm the least an attack
on the fnality Of the judicial process
operating within its proper sphere.
After election he and Senator BustoW
broadened the recall scheme and pro-
posed 70 make # apply to the federal
courts. and not TO constitutional queS-
tions only. but to decisions In general
which were unsatisfactory. Still, even
then, no hint was given that this recall
was intended TO 20 further than give
the people q more direct power OF
lawmaking. Now. however. comes the
Progressive suggestion Of substituting
the Judgment Of the millions Of coal
consumers for that Of the judges on
the vast mass Of evidence iu the coal
case. Thus the recall OF decisions
stands fully revealed as a programme,
mot merely 10 subordinate the peculiar
ly American judicial function Of inter
pretlng constitutions 10 the viii OF
popular maiorities, but also 10 set aside
judicial determinations OF law and fact
whenever those determinations clash
with popular interest or prejudice
The coal decision did not turn on
constitutional questions, or even on any
"reactionary" Interpretation 81 the
sherman law. The court Interpreted
81 most broadly in the direction Of
making It effective II declared that
acts in themselves lawful might, If
taken for the purpose Of restricting
.competitiOn, be unlawful, and showed
the strongest disposition 10 exercise
,the most sweeping equity powers 10
prevent monopoly, no matter how cley-
erly monopoHsts might continue 10
make their every act technically law
fll. If the result IS disappointing It IS
because the government did not suc-
coed in furnishing legal proof OF the
main charge. Where il did furnish
proof IL secured relief 4 demand for
sthe recall Of decisions iR-suCh matters
lis nothing but a demand for lynch
ilaw: for the overriding Of impartial
Judgment on questions Of evidence and
fact by a decision based on popular
kmpressiOnS. aspirations and interests.
The fact that the popular decision i
10 be given according 70 rule does not
make It less lynch law. a cOnstitu-
lfional amendment in South Carolina
ALLOWING a mass meeting OF the vici-
mage 10 recall the decision Of judge
and jury holding a negro innocent OF
p charge Of rape would give a legal
status to Governor Blease's doctrine
but # would not make the system any
The less lynchlng. That is just what
The recall applied to decisions like the
coal finding amounts 10. If the court
doesn't think the testimony proves the
state Of facts which are popularity be-
'lloved TO be tine. recall the decision ana
find the facts to be what the populace
desires them 10 be. Suspected trust or
suspected murderer, it makes no diff
ference. That is the logic Of Mr.
Roosevelt's doctrine as now applied by
his followers 90 the coal case. IL Is
what was Indignantly disavowed lit
tle time ago. but "easy is the descent
a. Sx.o,.nus