Los Angeles herald., 1908-01-10
Old Rule Abolished

Old Rule Abolished
"Second-You ask me what l think Oh
proposition that no restraining order
or Injunction shall issue except after no.
tice to the defendant and hearing is
had. This was the rule under the fed
eral statutes for many years, but 1t was
subsequently, abolished.
''In the class of cases to which you
refer, 1 do not see any objection to the
re-enactment of that federal statute IN
deed, / have taken occasion to say IN
public speeches that the power to issue
iniunctions. ex parte. has given rise to
certain abuses and Injustice TO the labor
ers engaged in a peaceable strike.
Men leave employment on strike;
counsel for the employer applies to
fudge and presents an affidavit aVerring
fear of threatened violence and making
such a case on the ex parte statement
that the Judge feels called upon to issue
a temporary injunction
"The temporary restraining order Is
served on all the strikers; they are not
lawyers: their fears are aroused by the
process with which they are not acquaint-
ed and. although their purpose may have
been entirely lawful. their common deter
mination to carry through the strike is
weakened by an order which they never
have had an opportunity to question and
which is calculated to discourage their
action
avoid this injustice and I believe, as
have already said. that the federal statute
might we'll be made what it was orig
inally, requiring notice and hearing
before an injunction can issue.
Limitation of Time
'oThird-In answering your question 1t
would seem that it is unnecessary to
impose any limitation as to the time Tor
a final hearing if. before an injunction
can issue at all. notice and hearing must
be given. The third question is relevant
and proper only should the power of Is
suing ex parte injunctions be retained In
the court In such case l should think
II eminently proper that the statute
should require the court Issuing an ex
parte Injunction to give the person
against whom the injunction was issued
an opportunity to have hearing thereon
within very short space of time, not to
exceed, I should say. three or four days
'Fourth-Your question is. in effect,
what would think of a provision in such
cases by which the contemnor-that Is.
the person charged with the violation Of
an order of injunction-might object to
the Judge who issued the injunction as
the one to try the issue. whether the IN
junction had been violated and to fix
punishment in cases of conviction and
thereby require another judge to try the
issue and impose sentence is necessary? ?
'In federal courts, in such cases 1t
would be proper to provide that the
senior circuit judge OF the circuit court
should. upon the application Of the de-
fendant or contemnor, assign another dis
trict or circuit Judge to sit and hear the
issue presented.
Not Unreasonable
''I do not think such a restriction would
be unreasonable. In most cases 1t would
be unnecessary. But I admit there is a
popular feeling that in contempt pro-
ceedings, and the very name of the pro-
| ceedings suggests 1t, the judge issuing
| the Injunction has a personal sensitive
ness in respect to its violation, therefore
he does not bring to the trial in the issue
presented by the charge of the contempt
OF his order the calm judicial mind
which insures justice.
II think that this popular feeling is in
most cases unfounded, but believe that
1t is better where it can be done with
out injuring the authority of the court
and the efficiency of its process, to grant
| such a privilege to the contemnor and
| thus avoid an appearance OF injustice,
even at some inconvenience in the mat
| ter of securing another Judge.
There is some analogy, though 1t is
not complete. between the exclusion of a
Judge from sitting in the court of appeal
| to review a decision of his own, which
now obtains in the practice of the federal
! court of appeals by statute, and the pres
| ent suggested case. 1t Is of the highest
Importance that the authority of the
court to enforce it's own orders effectively
should not be weakened. and therefore
am opposed to the intervention of a jury
between the courts decree and its en-
| forcemeut by contempt proceedings. II
would mean long delay and greatly
\ weaken the authority of the court.
! II do not think that the permission to
change the judge, however, would consti-
| tute either serious delay or inture the
efficacy of the order, while it may secure
! greater public confidence in the justice OF
| the courts action. The appearance OF
justice is almost as important as the ex-
istence Of it II. the administration OF
courts. Sincerely yours,
''WILLIAM II. TAFT"
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