The Washington herald., 1908-07-29

restraining orders commanding defend
ant in effect to maintain the status quo
until hearing. Such a process should
issue only in rare cases where the threat
ened change OF the status QUO would IN
iict irreparable injury If tine were taken
70 give notice and & summary hearing
The unlawful injury usual IN Industrial
disputes, such as I have described. does
not become formidable except after sutFi-
ctent time IN which TO give the defendants
notice and q hearing I do not mean 10
say that there may not Re cases even in
Industrial disputes where q restraining
order might properly be issued without
notice, but, generally, I think il is ether
wise IN some State courts. and in fewer
Federal courts. tie practice OF issuing a
temporary restraining order without Cc-
tee merely 10 preserve the status quo on
the theory thatNit went hurt anybody
has been toe common Many oF Us recall
that the practice has been pursued n
other than Industrial disputes. as, for in
stance, IN corporate and stock c01trc-
ve-sies Ike those over the Erie Railroad.
N which a stay order without notice was
regarded as a step OF great advantage 10
the one who secured u and q correspond
ing disadvantage 10 the ore against
whom il was secured. Indeed. the chances
Of doing injustice on an eX-parte app-ica-
tion are much increased over those when
a hearing IS granted. and there may be
circumstances under which II may AFFECT
the defendant 10 his Cetrime1t- IN the
case OF a lawful strike. the sendI-g OF a
formidable document restraining . NUM-
ber OF defendants from doing z great
many different things which the plaintiff
AYERS they are threatening 20 do. often
50 discOEraEes men always reluctant 10
go into a strike from continuing what is
their lawful right. This has made the IA
boring man feel that an Injustice Is done
IN the issuing OF 2 writ without notice. I
conceive that in the treatment of this
question Il IS the duty OF the citizen and
the legislator 10 view the subject from
/ the standpoint Of the man who believes
himself 10 be unJUstly treated. as well as
from that OF the community al large I
have suggested the remedy OF returning
in such cases 10 the original practice IN
Ger the old statute OF the United states
and the rules in equity adopted by the
Supreme Court. which did not permit the
issuing Of an injunction without notice.
In this respect the Republican conven-
ticn has adopted another remedy, thac.
without going so far. promises 70 be eff
cacious in securing proper consideration
in such cases by courts. By formulating
inco legislative act the best present p-ac-
tee
Under this recommendation a statute
may be framed which shall define with
considerable particularly. aid emphasize
the exceptional chara cter OF the cases IN
which restraining orders mZy issue with
out notice, and which shall also provide
that when they are issued they shall
cease 70 BE operative beyond short Pc
Rod. during which time notice shall be
served and a hearing had unless the de-
fendant desires a postp0nement Of the
hearing By this provision the injustice
which has sometimes occurred BY which
a preliminary restraining order Of widest
application has been issued without no
Jice. and the hearing OF the motion for
the injunction has been Fixed weeks and
months after its date. could not recur.
Small Number Of Cases.
The number Of instances IN which re-
straining orders without notice in indus
trial disputes have issued BY Federal
courts is small. and Il IS urged THAI they
do not, therefore. constitute al evil to be
Temedied by statutory amendment The
small number OF cases complained Of
above shows the careful manner IN which
most Federal judges have exercised the
Jurisdiction. but the belief that such cases
are numerous has been so Widespread and
has aroused such feeling Of injustice that
more definite specification IN procedure to
prevent recurrence OF them IS justified Il
It can be effected without injury 10 the
administration Of the law
No Provision IN Democrats Platform
as 60 Notice.
With respect TO notice, the Democratic
platform contains no recommendation. Its
only ineligible declaration IN regard 10
injunction suits is reiteration OF the
plank in the platform Of 1895 and 1904 pro
viding that IN prosecutions fo- contempt
in Federal courts. where the violation OF
the order constituting the contempt
charged IS indirect. f. e. outside OF the
presence OF the court. there shall be q
jury trial
Dangerous Attack on Power of Courts
This provision in the platform Of 1895
was regarded then as a most dangerous
attack upon the power Of the courts 70
enforce their orders and DEGREES, and L
was one OF the chief reasons for the de-
feat Of the Democratic party in that con-
test, as It ought to have been. The ex-
tended operation OF such a provision to
weaken the power Of the courts IN the en-
forcement Of its lawful orders can hardly
be overstated.
Effect of Jury Trial.
Under such a provision a recalcitrant
witness who refuses TO obey a subpoena
may insist on a jury trial before the court
can determine that he received the sub
pOena- A citizen summoned as q juror
ard refusing to obey the writ when
brought into court EassSt be tried by an
other jury TO determine whether he got
the summons. Such a provision applies
not alone 70 injUnctions. but to every
order which the court Issues against per
errf~ H., -
first instance and carried TO the Court OF
Appeals, and thence to the Supreme
Court. and a judgment and decree entered
ard an order issued, and then II the de-
cree involves the defendants doing any
thing OF not doing anything. and he dis