Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-07-28
to sap the foundations of a free govern
ment.
Hearing Before Injunction.

AedI1uk 0cAOAC AAkASs
at come now to the question Of notice
before issuing an injunction. 1t is run
damental rule of general Jurisprudence
that no man shall be affected BY a judi
cial proceeding without notice and near
ing This rule, however, has sometimes
had an exception in the issuing OF tenn
porary restraining orders commanding
defendant in effect to maintain the status
quo until a hearing. Such a process
should issue only in rare cases where the
threatened change of the status quo "ouiu
inflict irreparable injury II time were
taken to give notice and summary near
ing. The unlawful injury usual IN lnnus-
trial disputes, such as | have described,
does not become formidable except AFTER
sufficient time in which to give the oe-
PENDANTS notice and a hearing. do not
mean to say that there may not be cases
even in industrial disputes where a re,
straining order might properly be issued
without notice, but. generally. think II Is
otherwise. In sonic state courts, and In
fewer federal courts, the practice of issu-
ing a temporary restraining order With
out notice merely to preserve the status
quo on the theory that 1t won't hurt any
body has been too common Many OIL US
recall that the practice has been pursued
in other than industrial disputes, as. for
instance, IN corporate and stock contro-
versies like those over the Erie railroad,
In which a stay order without notice was
q
the one who secured II. and CORE
sponding disadvantage to the one against
whom II was secured. Indeed. the chances
of doing injustice on an ex-parte applica-
ton are much increased over those Wnen
q hearing IS granted, and there may De
circumstances under which 1t may AFFECT
the defendant to his detriment. In the
case of lawful strike the sending OF
formidable document restraining num-
Der of defendants from doing great
w
AYERS they are threatening TO do often so
discourages 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 a writ without notice. l
conceive that in the treatment or TINS
question 1t is the duty of the citizen ana
the legislator to view the subject from
the standpoint of the man who believes
himself to be unjustly treated. as well as
from that of the community at large 1
have suggested the remedy or returning
in such cases to the original practice I'M
der the old statute of the Cnited' States
and the rulcs in equity adopted by the
Supreme Court. which did not permit the
issuing of an injunction without notice.
In this respect the republican convention
has adopted another remedy. that With
out going so far promises to be eft1ca-
cious in securing proper consideration in
such cases by courts by formulating into
q legislative act the best present practice.
"Under this recommendation, statute
may be framed which shall define with
considerable particularly and emphaAze
the exceptional character of the cases in
which restraining orders may issue with
out notice, and which 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 hearing had unless the de-
PENDANT desires a postponement of the
hearing. BY this provision the injustice
hf1l1 hos Hyyr toll
q preliminary 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 Ground for Complaint.
''The number of instances in which re-
straining orders without notice in in
dustrial disputes have issued by federal
courts is small, and it is urged that they
do not therefore constitute an evil to be
remedied 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 wide
spread and has aroused such feeling of
Injustice that more definite specification
In procedure to prevent recurrence OF
them is justified if it can be effected
without injury to the administration of
the law.
with respect to notice, the demo-
cratic platform contains no recommends
ton. Its only Ineligible declaration in
regard to injunction suits is reiteration
of the plank in the platform of 1895 and
1904 providing that in prosecutions for
contempt in federal courts. where the
violation of the order constituting the
contempt charged is indirect, ie.. outside
there
be jury trial.
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 to
enforce their orders and DEGREES. and 1t
was.ene 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 their lawful orders can
hardly be overstated
Effect of Jury Trial.
'Jnder such provision a recalcitrant
witness who refuses to obey a subpoena
may insist on jury trial before the
court can deter mine. that he received the
subpoena. A citizen summoned as juror
and refusing to obey the writ when
brought into court must be tried by an
other jury to determine whether he got
the summons. Such a provision applies
not alone to injunctions, but to every or
der which the court issues against per-
sons. A suit may be tried in the court Of
first instance and carried to the court of
appeals and thence to the Supreme Court,
and a Judgment and decree entered and
an order issued, and then II the decree
involves the defendants doing anything
or not doing anything, and he disobeys It,
the plaintiff. who has pursued his rem
edies IN lawful course for years. must, to
secure his rights undergo the uncertain
ties and delays of a jury trial before he
can enjoy that which Is his right by the
decision of the highest court of the land
/ say without hesitation that such q
change will greatly impair the indis-
pensable power and authority Of the
courts. In securing to the public the ben
efits of the new statutes enacted in the
present administration the ultimate in
strumentality to be resorted to is the
courts of the United States II now their
authority Is to be weakened in a manner
never known in the history of the juris-
prudence of England or America, except
in the constitution OF Oklahoma, how can
we expect that such statutes will have
efficient enforcement? Those who advo-
cate this Intervention Of a jury In such
cases seem to suppose that this change
In some way will inure only to the
benefit of the poor workingman. AS a
matter of fact. the person who will secure
chief advantage from II is the wealthy
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