Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-07-29

q 10&AsAtsAAASAAlAA 1ASs VA t3SStASAtAtt
prudence that no man shall be affected
by judicial proceeding without notice
and hearing. This rule. however, has
sometimes had an exception in the is
suing Of temporary restraining orders
commanding defendant in effect to
maintain the status quo until a hear
ing. Such a process should issue only
in rare cases where the threatened
change OF the status que would infict
irreparable injury If time We're taken
to give notice and summary hearing. |
The unlawful injury usual in indus.
trial disputes, such as have describ-
ed, does not become formidable except
after sufficient time in which to give
the defendants notice and hearing.
do not mean to say that there may
not be cases even in industrial dis
putes where restraining order might
properly be issued without notice, but,
generally, I think it is otherwise. In
some State courts, and in fewer Fed
eral courts, the practice OF issuing a
temporary restraining order without
notice merely to preserve the stGtus gao
on the theory that it won't hurt any
body, has been too common. Many Of
us recall that the practice has been
pursued in other than Industrial dis
putes, 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
step Of great advantage to the one who
secured it, and corresponding disad-
vantage to the one against whom it
was secured. Indeed, the chances Of
doing injustice on an ex-parte applica-
ton are much increased over those
when a hearing is granted, and there
may be circumstances under which it
may affect the defendant to his detri-
ment. In the case Of lawful strike,
the sending Of formidable document
restraining 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 strike from continuing what is
their lawful right. This has made the
laboring man feel that an injustice is
done in the issuing of a writ without
notice. I conceive that In the treat
ment of this question it is the duty
of the citizen and 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. have
suggested the remedy Of returning in
such cases to the original practice I'M
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, without going
| so far, promises to be eficacious.
| Effect of Jury Trial.
Under such provision recalcitrant
| witness who refuses to obey a subpoe.
ma may insist on jury trial before the
! court can determine that he received
the subpoena. A citizen summoned as
+ a juror and refusing to obey the writ
when brought into court must be tried
BY another jury to determine whether
he got the summons. Such a provision
applies not alone to injunctions, but tc
! every order which the court issues
against persons. A suit may be tried
in the court Of first instance and car.
ried to the Court Of Appeals, and thence
to the Supreme Court, and a judgment
and decree entered and an order is.
sued, and then il the decree involves
the defendants doing anything or not
doing anything, and he disobeys it, the
plaintiff who has pursued his remedies
In lawful course for years must, to Sc
cure his rights, undergo the uncertain
ties and the delays Of jury trial be-
fore be can enjoy that which is his
right by the decision Of the highest
court Of the land. say without hest
tation that such change will greatly
impair the indispensable power and
authority of the courts. Securing tt
the public the benefits of the new stat
ration, the ultimate fundamentally tt
be resorted to Is the courts Of the Unit
ed States. If now their authority is tt
be weakened In manner never known
in the history of the jurisprudence Of
England Or America, except in the con
stitution Of Oklahoma, how can we ex
pect that such statutes will have eff
cient enforcement? Those who advo
cate this Intervention Of a jury in sucf
cases seem to suppose that this change
in some way will inure only to the ben
eft of the poor workingman. AS 6
matter Of fact, the person who will Sc
cure chief advantage from it is the
wealthy and inscriptions defendant
able to employ astute and cunning
counsel and anxious to avoid justice.
The administration of justice lies al
the foundation Of government. The
maintenance Of the authority of the
courts Is essential unless we are pre-
pared to embrace anarchy. Never II
the history of the country has there
been such an insidious attack upon the
judicial system as the proposal to inter
ject a jury trial between all orders o.
the court made after full hearing anG
+ the enforcement Of such orders.