Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1908-07-29

some state courts. and IN fewer federal
courts. the practice of issuing a tenn
porary restraining order without no.
lice merely to preserve the status quo
on the theory that 1t won't hurt any
! body. has been too common. Many OF
us recall that the practice has been
pursued in other than Industrial dis
putcs. as. for Instance, IN corporate
and stock controversies like those over
the Erie railroad in which a stay or
der without notice was regarded as n
step of great advantage to the one
who secured IL, and a corresponding
disadvantage to the against whom
II was ccured. Indeed. h chances
of doing injustice on an eN-parte APP
plication are much increased over
those when a hearing is granted, and
there may be circumstances under
which ii may affect the defendant to
his detriment. In the ease of a law
/ full strike, the sending of a formidable
document restraining a number of de-
PENDANTS from doing a great many diff
ferent things which the plaintiff AYERS
they are threatening to do. often so
disCouraEes men always reluctant to
go into a strike from continuing what
is their lawful right. This has made
the laborlng man feel that an ln1us-
ticc Is done in the issuing of a writ
without notice. | conceive that in the
treatment of this question IT Is the
duty of the citizen and the legislator
TO view the subject from the stand
point of the man who believes him
self 10 be unjustly treated. as well as
from that oil the community at large.
| nave suggested the remedy of re-
turning in such cases to the original
practice under the old statute of the
United States and the rules i'm equity
adopted by the supreme court which
did not permit the issuing OF an in
junction without notice. In this re-
spect. the republican convention has
adopted another remedy, that, without
going so far promises to be efficacious
i'm securing proper consideration In
such cases by courts, by Formulating
into a legislative act the best present
practice.
Under this recommendation, q stat
ute may be framed which shall define
with considerable particularly, and
emphasize the exceptional character of
the cases in which restraining orders
may ISSUE NlAlpuA ipAA'Nf gu" NAANA'
shall also provide that when they are
issued, they shall cease to be operative
beyond a short period. during which
time notice shall be served and a hear
ing had unless the defendant desires
"A postponement of the hearing. BY
this provision the injustice which has
sometimes occurred by which a pre-
liminary restraining order of widest
application has been issued Without
notice, and the hearing Of the motion
for the injunction has been fixed
weeks and months after It's date, could
not recur
Small Number of Case Furnishing
Grounds for Complaint In Fed
cral Court.
The number of instances in which
restraining orders without notice in
industrial disputes have issued by fed
eral courts is small. and It is urged
that they do not therefore constitute
an evil to he remedied by statutory
amendment. The small number Of
eases complained OF above shows the
careful manner i'm which most federal
judges have exercised tho jurisdiction,
but the belief that such eases are nu-
merous has been SO widespread and
has aroused such feeling of injustice
that more definite specification I'm pro-
cedure to prevent recurrence of them
is justified If it a he effected with
out injury to the administration of the
law.
No Provision in Democratic Platform
as 10 Notice; Only Recommended
ton Trial by Jury.
with respect to notice the demo-
cratic platform contains no recon-
m%endation It's only ineligible dec
laration in regard to injunction suits
Is a reiteration OF the plank in the
platform of 1896 and 1904, providing
that in prosecutions for contempt in
federal courts. where the violation Of
the order constituting the contempt
charged is indirect, E. e., outside Of
the presence of the court, there shall
be a jury trial.
Dangerous Attack on Power of Courts.
This provision in the platform of
1896 was regarded then as a most dan
gerous attack upon the power of the
courts to enforce their orders and de-
crees. and il was one of the chief rea-
sons for the defeat Of the democratic
party in that contest. as it ought to
been. The extended operation
of such a provision to weaker the
power Of the courts in the enforce
ment of It's lawful orders can hardly
overstated.
Effect of jury Trial
Under such a provision "A recalCit-
witness who refuses to obey a
subpoena may insist on q jury trial be-
fore the court can determine that he
the subpoena. A citizen sunni
noncd as a juror and refusing TO obey
he writ when brought into court
must be tried by another jury to de-
-crmine whether he got the summons.
such a provision applies not lone to
nJunctions, but to every order which
he court issues against persons. \
suit may be tried in the court OF first
Instance and carried to the court of
ippeals, and thence to the supreme
and a judgment and decree en-
cred and an order issued. and then if
he decree involves the defendants
Icing anything or not doing anything,
md he disobeys u, the plaintiff who
pursued his remedies i'm lawful
curse for years must, to secure his