Page:The Green Bag (1889–1914), Volume 25.pdf/403

This page needs to be proofread.


378

The Green Bag

the evil use that may be made of the law, and promote the purpose intended by the law, it will be subserving its duty to the public. That the law is capable of abuse is demonstrated by the views which many people have of it. Since it went into effect, the only talk we have heard in Colorado of invoking it was upon two occasions, and on each of those against officers who con fessedly were discharging their duty in the enforcement of the plain provision of the law. But the fact that the ebul lition of temper which prompted the agitation subsided when it met with the advice of the more far-seeing, is an evi dence that the dangerous element in the law is not of so ready avail, as a dis cerning fear on reading the document might suggest. THE OTHER RECALL The fact that constitutional or statu tory provisions for the recall of officers have been made in so many of the states of the Union, proclaims, with almost overwhelming strength, the existence of a good reason for its enactment. The subject has been one of public discussion for more than a decade, has agitated the minds of thinking people throughout the Union, and has elicited through the press and from the platform their wellmatured views; hence it cannot be said that the law is hasty or ill-advised, even though we may criticise some of the provisions thereof, and suggest an improvement thereon. While this may be said of the recall of officers, can the same comment be fairly made of the recall of judicial decisions? This law seems to have had its birth in the utterance of one who had thereto fore proclaimed the recall of judicial officers "a very foolish experiment," and said that "its follies may be illuminating

to other states in the Union." Such was the language of Colonel Roosevelt in commenting upon the judiciary recall in the constitution of Arizona. He adds: "Personally I do not think, under normal circumstances, it is advisable to have the principle of popular recall applied to the judiciary." {Outlook, vol. 98, page 378; id. 852.) But after this potent utterance against the application of the recall of judiciary came the decision of the Court of Appeals of New York on the Employers' Liability Law — a favored measure of Mr. Roosevelt — and, we believe, germinated the thought in his mind to stand upon his previous utterance, yet attack the body which, in his judgment, had committed an inexcusable error in its judicial inter pretation of the favored statute. These observations are made with the most profound respect for a person whose views and labor I hold in the highest esteem. It is, however, to be regretted that a longer period of con sideration could not have been afforded us upon the adoption of the amendment of Article 6 of our constitution, as I think a less confusing amendment would have been accorded us. An analysis of the amendment may prove of interest and possibly of profit. The first sentence of the section reads as follows: "The judicial power of the state as to all matters of law and equity, except as in the constitution otherwise provided, shall be vested in the Supreme Court, District Courts, County Courts, and such other courts as may be provided by law." Comparing this sentence with Section 1 of Article 6 of our old constitution, we find that the only change in that sentence of the amendment is to omit the words "Jus tice of the Peace," thereby eliminating justices of the peace as a constitutional part of the judicial power of our state,