Page:The Green Bag (1889–1914), Volume 25.pdf/430

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The Editor's Bag the judges servants of the people. To prove the point, we publish an example of a judicial decision which might be rendered by a Colorado court without deviating from the rule of judicial reasoning applied, if possibly differing slightly in phraseology. We are in debted for this specimen to a professor of law who sends the following explana tory remarks by way of introduction: "The constitution of Colorado contains a pro vision limiting the number of constitutional amendments which may be submitted at one election. Since the introduction of the initiative and referendum the pressure for amendments has 1 believe been simply some enormous. thirty-eight At amendments the last election were submitted by way of initiative. The question arose whether the constitutional limitation on the number that could be submitted at any one time applied, and a divided Supreme Court held in substance that there was a popular dispens ing power with reference to this constitutional provision involved in the mere voting upon the amendments. "My attention was called to this some time ago by a lawyer in another state who had been reading the opinion and after reading it formu lated 'A Modern Decision Under the Shadow of the Recall' (you will remember that the recall of judges obtains in Colorado), which seemed so amusing to me that I asked for a copy in order to send it to you, and am enclosing it herein. It is really an excellent parody of the opinion and I think shows exactly the sort of stuff that we are going to come to under a regime of recall of judges." A MODERN SHADOW DECISION OF THE RECALL UNDER THE John Doe, 1 Plaintiff tn Error, v. Richard Roe, Defendant tn Error. On the part of the plaintiff in error, it is con 2tended and 2 that makeunder four; the on constitution the part of the of this defendant state, in error, that 2 and 2 make five. The result of this controversy depends on which of these contentions is correct. It is true, as contended by plaintiff in error, that there is a general rule, supported by many

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authorities, both ancient and modern, to the effect that 2 and 2 make four. But it is equally well settled that there are exceptions to most rules, and that is apparently true here. For instance, if 2 and 2 be thus arranged — 22 — they make twenty-two. Now the greater includes the less. It is held by some of the authorities that this rule is with out exception; but it is not necessary for us now to determine that point. For the purposes of the present case, we will assume that conten tion to be correct. It logically follows from the premises that 2 and 2 may make anything from one to twentytwo. We are not to be understood, however, as announcing that, under peculiar circumstances and conditions, 2 and 2 may not make some thing greater than twenty-two or something less than one. It is not necessary to consider that question, inasmuch as the parties here agree that 2 and 2 make either four or five, which numbers are, we think, at least for the purposes of this case, included within twentytwo. We see no merit in the contention that the two numbers should be thus arranged — 45 — and are, therefore, not included within twentytwo. Logically they must be considered dis junctively and not conjunctively. It being thus demonstrated that either of the main con tentions may be correct, the question remains — What do 2 and 2 make in this particular case? What should be the rule of decision? The purpose and object of all law is to pro mote the happiness and welfare of the people, and that is the law which will best serve that purpose. Certainly as to what will best promote their happiness and welfare there can be no better judges than the people themselves. It is true that the older authorities hold with unanimity that written constitutions are ordained by the people to guard themselves against their own hasty or passionate, and, therefore, ill-considered action. But this notion is now thoroughly ex ploded as being utterly inconsistent with the principles of popular government. It is now thoroughly settled that the people, as the sov ereign, can do no wrong; that the voice of the people is the voice of God. The courts must recognize evolution in the science of government. As custodians and guardians of the constitution it is their duty to make it keep pace, as far as possible, with the march of progress, and not to fasten it as a dead weight upon the necks of a free people. Especially is this true since the adoption of the recall amendment, the purpose