Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1873-10-05
THE INJUNCTION.
Review Of the Action Of the Court by a
Leading Lawyer of the City.
All the Points COnsidered-Th Facts
Of the Bill COntr0verted and
Laid Bare.

| EDITORS APPEALING one can doubt for n
j momentJ Judge Flippin's honesty or integrity
! OF purpose in issuing this Injunction. Butthe
act Is "A grave judicial error, and the public
Interests require that IL should be criticized.
/ Fer, although the interests OF the defendants
a-e in excellent profes siOnal hands, the sub.
/ Ject is Of vital importance to all persons who
are Obliged 70 remain in this sOre-stricSen
/ city, and in okes the assistance Of any ami
Gus pUbtfcf 10 prevent the preparation of the
error. II is known to lawyers that the writ of
/ Injunction Is an extraordinary process OF the
court OF chancery, and to be issued or with
neid at the discretion Of the judge, sOundly ex-
| ercised.
on the facts Of the bill the fat ought not to
have been granted.
First-The bill was not true in its state
mengs, ana It's want 0f truth was matter OF ju-
dlcial cOgniZance. It reci ted that the house Sc
lected was the naVy-yard cOmuoa ndaut1s house
and that this is lin the very heart of the city
Inc judge was obliged to know that this prop
Is IN one (to-wit, the rthwesternj of its ex-
uemlties. II might as well have said mat the
hand is in the very heart of the body, and re-
quire the judge to believe il.
Second-rhe bill recites that the location is
~ ~ the very center of the infected district"
Ihls ought 10 have satisfied the judge of two
Things: First that he concentration OF the dis
ease IN one small locality / the very center
OF the infected district would be much more
eincaclous to its control, to the cure OF the
SICK, 70 the prevention of its spread,
ana 10 the protection of those re-
naming yet unattached. than 10 have
IL widespread through the district
Second, the judge should also have remem-
Dered that II the cOmpla ming parties con-
Sented to remain at their homes in the very
cenIeI on an injected atmosphere extending
over many acres, they would be in no
more jeopardy by the contraction of
me disease within smaller COM
pass; on the contrary that their DeriI
would be lessened, because the localities from
which the sick would be removed might be
Immediately subjected to disinfection and the
atmosphere to that extent purified.
Third-And his honor might have readily
supposed that the friends of the sick in remote
parts OF the city would hardly send them to
this hospital, much less bring them from the
country; and so this was an exaggerated
apprehension.
Fourth-As to the cruelty to the sick recited
IN the bill, the judge could well believe that
the unseld1sh and disinterested members of
the humane body, known as the Howard as
soelalon, The physician consulted and the
lnunlclpdl and police authorities were better
instructed on that point than the applicants
for the injunction, whose action was one
wholly Of self-interest.
Fifth-The protest of wrong, Injustice and
cruelty TO the yet unaffected. his honor should
have known to be ill-fOunded, as the princi.
PIE OF law Is Wen established, that in critical
emergencies the individual interest OF the few
must yield to the public safety. 10 is on this
principle that municipal corporations NAV
establish quarantine; that they may pro-
hlbit the building OF other than specified
kind OF houses within certain Of the city linn
IT'S that they NAV blow up houses to stop the
spread OF nre. In all these cases indi-
ElduaI interests may be damaged,
but they must yield 20 the public
good. So in this case: II 10 required that
these unaffected citizens should be Obliged TO
remove temporarily, the authorities, for the
general safety, had right TO make this ezae-
uon. Wheihersuch would not be entitled 10
compensation is another question. But
the power to require The submission of
the few TO the safety Of the community is an
absolute sovereign attribute Of the eminent
SiXth-The Injunction was wrong. because
by the showing Of the bill, as well as by the
known facts, the hospital was already estab-
an Il ON naHnwu to-.
Inlng already performed. Especially could IT
not IN TINS case. For how is IL
possible that these dying and sick
Inmates can be removed now or that
nursing and medical attention can be with
neid rom theIn? Humanity shudders at the
idea. Yet all this is required by
the terms of the Injunction. For the
prayer Of the bill is that the defend
ant desist from maintaining any such hos
pltal Tor The use Of the sick" and the order is
70 Issue tne ttyunoti9n prayed for. But, be-
sides all these matters, open TO the
e,onslue1aton OF the judges, upon
was against the application. First,
municipal corporations have The right
10 pass laws and ordinances 70 preserve
Second, by the thirty-seventh section Of
the city charter Of ls63-50, the general council
is vested with full power to Establish and
posed upon their being located within the
city.
The eases ere very scarce. when such appli-
NtANA~A%l
know that the most imposing buildings in all
our cities are its hospitals. generally located
near the heart, and Offering asylums for the
SICK, especially in contagious and infectious
diseases. But there is one noted case, when an
application similar TO this was made before
one of the most learned of the lord-chancel-
lors that England has produced, and any
Judge, even in these days Of law progress and
judicial development, might safely follow in
the line Of precedent set by Lord Hard wick,
assured Lnat ne would not be far out of the
path OF equity. A bill was filed before him to
stay the building of a hospital for people in
fecIed with smallpox in Cold Bath fields, very
near the houses Of several tenants OF the
pIalntln. Lord Harwick said; ''I cannot
make any order in this matter, 1 am of Opin-
ION u is a charlty lkely TO prove Of great ad-
vantage to mankind, such hospital must
not be far from a town, because those who are
attacked with that disorder in a natural way
may not be in a condition 10 be carried far.
list Amble r. 1881
Now those cOmplsinants were identified
with their neghHOrhOOd. IN the sensational
language of the bill here they expected 10
sink or swim with ito prosper or perish with
it," Yet il was held by that most eminent
lawyer that they must submit 81 Tor the public
good; and, undoubtedly, If the condition of
the sick required il, he would have allowed
hospital in the center OF the infected district.
repeat, while no man is more conscientious
or upright in his official conduct than Judge
Fhpptn, this act of his is all wrong, and the
trouble grows out OF the totally improper con-
ceplon that our judges have of the writ of in
Junction. 1t is writ Of extraordinary force,
to be employed only on rare and emergent oc-
casiOns, yet the judicial injunctiOns Aere-
abouts fly like boys kites in the spring Of the
year-in many instances as far from all prin-
ciples Of equity as these boys kites are from
the earth.
The truth is, the issuing of injunetions ought
to be confined strictly to judges who hold
courts of equity, and the legislature would act
wisely to institute some legislation to recall
within the ancient limits this species of judi
cial authority. But l suppose this is out of
the quesd n-legislatiSe wisdom. The idea is
ObSOiete.
Even If there was a law prohibiting hospital
or pesthouse in the limits Of the city, it would
have reference 20 permanent hospital, and
not a temporary inarmaTy, called for in "a mo-
ment Of epidemic, and deemed by the authori-
ties essential to the public safety.
EQUITY.