Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1914-01-15
Bismarck, Thursday, January IS, 1914
What Does judicial Recall Mean?

WnQE DOeS JuQlClU HeCQH lNeQn!
In the New Years number of the State News
We observe an EDITORIAL on the recent bond decision
of the supreme court. That newspaper, to our sur
prise, urges the necessity for the recall of judges
because the court decided the state bonding act was
unconstitutional. An editorial along the same lines
appears in the last edition of that paper. The infer
ence from these editorials is that our court is out of
touch with the sentiment of the people of this state
and that such sentiment is strongly in favor of the
bonding act as needed legislation curtailing the greed
of private bonding companies. That is the ground
plainly stated for the necessity of the recall of our
judiciary. In other words, our supreme court is out
OF harmony with sentiment when it holds that the
constitution controls over sentiment. That editorial
aptly and exactly illustrates the absurdity of the
clamor for right Of judicial recall. Underneath it
is a desire that courts administer sentiment instead
of law or justice. The clamor of the mob and the
cry of the bleachers is the voice of God. If you take
your private rights into court, try them by sentiment.
The customer refuses to pay the merchant for shoes
and flour furnished during a winter. Well, the mer-
chant is rich and sentiment says he can get along
without payment, and sentiment is the law. Senti.
ment should decree justice.
The constitution Of every state guarantees to
everyone that when unlawfully deprived of liberty
any court of general jurisdiction must, on %app!ica-
uou, WITHOUT ueIdy, nave the imprisoned Drought be.
fore it and ascertain the legality of his incarceration;
and If he be held without lawful right he must be
set free forthwith. Hundreds of years of persecution
wrung this inalienable right, With others, 2 including
right to trial by jury, from King John at Runnymede
in 1916, seven hundred years ago, and all Anglo
Saxons have enjoyed its benefits in every country
and in every cline from then till now. 1t is one OF
the inalienable rights guaranteed by our state con-
stitution. Alongside of it are the guarantees of life,
liberty and property we have enjoyed so long as to
sometimes ~foolishly believe they never can be lost.
But sentiment says, away with the constitution; let
there be nothing unconstitutional; the voice of the
people is the voice of God; the majority is always
right; the legislature (passng laws with empty seats
at 4 o'clock in the morning of the last legislative
day, as many of our laws are enacted) is bound to
be right; 1t cannot err, because it acts for US, and
are not we the sovereign people? No court shall
question the act of the majority; public sentiment
Is with it and the court is wrong because it ignores
sentiment; away with the courts then. If they do
not change like weathervanes to keep pace with sen,
tment they are out of date as Instruments of gov.
eminent. Let no law be declared unconstitutional
let the legislature. under a transient whim, remove
our rights to habeas corpus or jury trial; let it also
say that individual property is held under and sub
5ect to the public right of contiscation; let there be
no personal rights. Is not this reasoning unanswer-
able! To the voting rabble who listen to the soap
box orator, yes. To the indiscriminative and pessim-
istic newspaper, reader, yes. If it meets with tenn.
porary popular approval then it is the proper senti.
ment. Then away with the constitution, let senti.
ment control. Recalle the judiciary who refuse to
measure justice by sentiment, who recognize law and
not sentiment. The French Revolution was the ideal
government, because in truth sentiment was on the
throne and the judiciary were recalled by the quick
nrA .ox- .
process. Present conditions in Mexico also are ideal,
because the rights of property are not sacred and
well controlled sentiment comes so nearly controlling.
Huerta is up to date in refusing to obey a paper
constitution. Then let's have our only paper, too,
and let the newspapers declare the sentiment anu
let the courts take notice, under pain of judicial
recall. Is this reasonable? Never mind, don't in
quire; 1t Is p~opular-with some-thank heaven, not
with reasonable men. 1t is the logical outcome of the
up-todate policy of judicial recall or doctrine of vox
p0pulii vox Deli!