Kingsbury County independent. (DeSmet, Kingsbury County, S.D.) 1894-1929, 1908-08-07

inconsistent with all the decisions Of the
States says that the Injunction Is a rem
edy to protect property or rights OF . Pc
f.aniary nature and we may well submit
70 the considerate Judgment Of all laymen
whether the right OF a man In his busi-
ness Is not as distinctly a right of a Pc
~cuniary nature as the right TO his horse
or his house or the stock of goods on his
tions to protect business have been upheld
by all courts, are so mary that Ii Is futile
further TO discuss the proposition.
1t is difficult to tell the meaning of the
democratic platform upon this subject. 1t
says:
Questions of judicial practice have
arisen especially in connection with in
parties to all judicial proceedings should
be treated with rigid impartiality, and that
injunctions should not be issued In any
eases In which injunctions would not issue
il no Industrial dispute were involved"
The declaration is d~isingenious. 1t seems
to have been loosely drawn with the pur-
pose of rendering 1t susceptible TO one
a Numerically opposite Interpretation by
another. 1t does not aver that intunctions
should not issue in Industrial disputes. but
only that they should not issue because
they are industrial disputes, and yet those
responsible for the declaration must have
known that no one ever maintained that
the fact that a dispute was Industrial gave
any basis for issuing an injunction in
reference thereto. The declaration seems
to be drawn in its present vague and
ambiguous shape to persuade some people
that Ii is a declaration against the issue
OF injunctions in any industrial dispute.
while at the same time II may be possible
to explain to the average plain citizen
who objects to class distinctions that no
such intention exists. Our position is
clear and unequiyocal. We are anxious
to prevent even an appearance OF in
justice to labor in issuing injunctions,
not in the spirit OF favoritism to any set
of our fellow citizens, but in the interest
of justice to all. The reason for exer-
cising or refusing to exercise the power
acter Of the unlawful injury and not In
the character or class OF the persons who
infict the injury,
being unlawfully injured is entitled to
the remedies which the law has always
given him., no matter who has inflicted
the injuries. Otherwise we shall have
class legislation unjust in principle and
likely to sap the foundations of a free
government.
Issue of Injunction.
/ come now to the question OF notice
before issuing an injunction. 1t is a
that no man shall be affected by a judi
cial proceeding without notice and hear
ing. This rule, however, has sometimes
had an exception in the issuing of tenn
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 would
infiict ~irreparable injury IL time
were taken to give notice and a summary
hearing. The unlawful injury usual In
scribed, does not become formidable ex-
cept after sufficient time In which to give
the defendants notice and a hearing. l
do not mean to say that there may not
be cases even in industrial disputes where
a restraining order might properly be
issued without notice, but generally l
think it is otherwise. In some state
courts, and In fewer federal courts, the
ing order without notice merely to pre-
serve the status quo on the theory that
IL won't hurt anybody has been too COM
mon. Many of us recall that the practice
has been pursued in other than indus
trial disputes, as, for instance, in cor
porate and stock controversies like those
over the Erie railroad, In which a stay
Older without notice was regarded as a
step OF great advantage to the one who
secured 1T and a corresponding disad-
vantage to the one against whom II. was
secured. Indeed, the chances of doing
injustice on an ex parte application are
much increased over these when a hear
ing is granted, and there may be circum-
stances under which it may affect the
defendant to his detriment. In the case
OF a lawful strike the sending of a for
midable document restraining a NUMBER
Of defendants from doing a great many
different things which the plaintiff AYERS
they are threatening to do, often so dis
courages men always reluctant TO go into
a strike from continuing what is their
lawful right. This has made the labor
ing man feel that an injustice Is done
in the issuing of a writ without notice.
l conceive that in the treatment of this
question it is the duty of the citizen and
the legislator to view the subject from the
standpoint of the man who believed him.
self to be unjustly treated. as well as
from that of the community at large. j
nave suggested the remedy of returning
in such cases to the original practice un-
der 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 convention
has adopted another remedy that, with
out going so far, promises to be effica-
cious In securing proper consideration In
such eases by courts. by formulating into
a legislative act the best present prac-
tice.
Under this recommendation a statute
may be framed which shall define with
considerable particularly and emphasis
the exceptional character of the cases In
which restraining orders may issue with
out notice, and which shall also provide
tina when they are issued they shall
cease to be operative eyond a short
period, during which time notice shall be
served and a hearing had, unless the de-
fandant desires a postponement of the
hearing. BY his provision the injustice
which has sometimes occurred by which
a preliminary restraining order Of widest
Application has been issued without no.
tice and the hearing Of the motion for
the injunction has been fixed weeks and
months after it's date could not recur.
The number of Instances In which re-
straining orders without notice In In
dustrial disputes have issued by federal
courts is small, and 1t Is urged that they
do not therefore constitute an error 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 sue
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 1t can be effected with
out injury TO the administration OF the
law.
with respect to notice the democratic
: platform contains nc recommendation. It's
only ineligible declaration IN regard to
injunction suits Is a reiteration of the
plank In the platforms of 1896 and 1904
providing that in prosecutions for con-
tempt in federal courts where the VIOLA
ton OF the order constituting the contempt
charged Is Indirect, |. e., outside of the
presence Of the court. there shall be a
Jury trial,
This provision in the platform OF 1896
was regarded then as a most dangerous
attack upon the power of the courts to
enforce their orders and DEGREES, and 1t
was one of the chief reasons for the
defeat of the democrats in that contest,
as II ought to have been. The extended
operation OF such a provision to weaken