The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1899-07-02
A U. S. CIRCUIT JUDGE UPON GOVERN
MEM BY INJUNCTION.

Judges and the Supreme Court. were
first created i'm 1900. and sixteen Circuit
Court Judges were appointed by Presi-
dent Adams. Eighteen months later. I'M
der Mr.. .Tefferson's administration, the
Circuit Court act was abolished and
with it the judgeship created by it-a
fate which is evidently in store for the
present Circuit Judges, whenever the
people. and not the great corporations,
shall elect the President and Il majority
in both houses of Congress.
After the abolition of the needless
Circuit Court system under Jefferson.
it lay long time tabooed until few
years since, it was recreated under the
plea of pressure of business. But it
was charged then, and has been re-
pcated since, that the bill was in fact
passed by lobby influence to place Rail
road and corporation lawyers where
they could be of the most service to
their clients. Certain it is, that nearly
every Circuit Court Judge appointed be-
longed to that class. and the conduct of
most of them since, especially. in the
matter of government by injunction"
has gone far to prove that such was
the motive of the selections made.
Among the District Judges however
were Il few men. so eminent for their
ability, that public opinion had to lie
considered in their promotion. Among
these few was Judge Henry Clay Calds
Circuit Court of Appeals.
From an address delivered by him be-
fore the Missouri State Bar Association
at its last session at st. Louis, and
reprinted in the American Law Review
for June. we make the following preg-
nant extracts, which should be read by
the public, both lawyers and laymen.
After stating that government by in
Junction is simply "a device by which
the citizen is deprived of his right to a
trial by jury" he says:
THE modern writ of injunction is
used for purposes which bear no more
resemblance to the uses of the ancient
writ of that name. than the milky way
bears to the sun Formerly it was
used to conserve the property in dispute
between private ltigants, but in modern
times, it has taken the place Of the
police powers of the State and nation.
1t enforces and Restraints with equal
facility the criminal laws of the State
and nation With it the judge not only
Restraints and Furnishes the commission
of crimes defined by statute, but he
proceeds to frame a criminal code of
his own as extended as he sees proper.
by which various acts. innocent in law
and morals, are made criminal: such
as standing. walking. or marching on
the public highway or talking or preach
ing. and other like acts. In proceedings
for contempt for an alleged violation Of
the injunction the judge is the law
maker, the injured party, the prosecu
tor. the judge. and the jury. 1t is not
surprising that uniting in himself ali
these characters he is commonly able to
obtain a conviction
1T attacks and nulifies State laws
upon pure questions of fact which it
refuses to submit to IA jury. The valid
ity of State statutes regulating the
rates of transportation turn on the ques-
ton whether the prescribed rates are
reasonable This is purely question of
fact which ought to be determined by
a jury in all cases. But when the
statute confers on an officer or board
the power to fix the rates, the question
of the reasonablenes Of the rates so
fixed is never submitted to a jury. but
through the instrumentality of a writ
Of injunction against the State officer
or board who fixed the rates a judge
takes jurisdiction of the facts as well as
the laws of the case. and proceeds to de-
eide this pure question of fact.
The stark usurpation of federal
judge thus setting up his opinion of the
reasonableness of rates, as substitute
for that Of the Legislature. or Commits
sion appointed under authority of law.
has never been more clearly presented
than by this eminent u. S. Circuit Court
Judge. lie lUftHef says, anu IL IS worth
reading:
1.-The Legislature of a neighboring
State. perceiving the futility of trying
to regulate rates through any officer or
board Of the State. who could be reached
by writ of injunction hit upon the
cxpedient Of fixing the pass.n:s.r rates
by statute and giving to pc.sons who
were charged more than the prescribed
rates. right Of action at law 10 re-
cover Il penalty from the common car
rier A common carrier charged more
than the prescribed rates and The pas
senger brought suit for thn penalty.
and the jury found the rate prescribed
by the Legislature was reasonable. The
case was taken to the supreme Court of
the l.. S. R X. VS.. Gill 1876 y. 5. G49)
and what was said Ih"re il full of
Significance After referring to The fact
that where the rates were prescribed
by an officer or board, the officer or
board could he enjoined from enforcing
them. the court said Blu: there are
other eases, and the present is one,
where the Legislatures choose to act
directly on the subject by themselves
establishing A tariff of rates ami pI"-
scribing penalties. In such cases. there
is no opportunity to resort to Il cOmpen