The herald-advance. (Milbank, S.D.) 1890-1922, 1908-12-11

ott0ngth; n only mischief can result
when such determination is upset OF
the ground that there must be no lin,
terfersnce with the liberty to contract
often a merely academic 'liberty,'
the exercise of which is the negation o
real liberty.
Ihere are certain decisions by va.
rlous courts which have been exceed.
lngly detrimental to the rights 0
Wageworkers. This is true of all thu
decisions tina decide that men ant
women are, by the Constitution, guar.
ahteed their liberty to contract to en-.
Ter d dangerous occupation, or to WOrl
an undesirable or improper number o.
hours, or to work IN unhealthy sur.
Toundlnss; and therefore can not re
cover damages when manned in that
and can not be forbidden
10 work what the legislature decides Is
an excessive number OF hours, or tt
carry on the work under conditions
which the Legislature decides to be
unhealthy. The most dangerous occu-
patlons are often the poorest paid and
those where the hours of work are
longest; and in many cases those who
go into them are driven by necessity
so great that they have practically
no alternative. Decisions such as
those alluded to above nullify the leg
lslative effort to protect the wage
workers who must need protection
from those employers who take ad-
vantage of their grinding need. They
halt or hamper the movement for Sc
curing better and more equitable con
ditions of labor. The talk about pre-
serving to the misery-hunted being
VINO make contracts for such service
their "libertN' to make them, is either
to speak in a spirit of heartless irony
or else to show an utter lack of knoWl-
edge Of the conditions of life among
the great masses of our fellow
tryInen, Il lack which units q judge to
do good service just as it would unfit
any ~xecutivc or legislative officer.
There is also. ] think, ground for to-
belief that substantial injustice is
often suffered by employees in conse-
Quencc OF the custom of courts issuing
temporary l%niunctions without notice
to them. and Furnishing them for con-
tempt OF court in instances where as
a matter of fact. they have no knowl-
edge of any proceedings. Outside of
organized labor there is a widespread
feeling that this system often works
great injustice to WageWOrkerS when
their efforts to better their working
condition result in industrial disputes.
A temporary injunction procured ex
partc may as a matter of fact have
all the effect Of Il permanent injunction
in causing disaster to the ~wagework-
erS' side in such a dispute. Organized
labor is Chafing under the unjust re-
straint which comes from repeated re
sort to his plan of procedure, It's
discomfort has been unwisely ex-
pressed, and often improperly ex-
pressed, but there is n sound basis for
it. and the orderly and law-abiding
people of a community WOuld be in a
far stronger position for upholding the
courts if tn" undoubtedly existing
abuses could he provided against.
Such proposals as those mentioned
above as advocated by the extreme la
Dor leaders, contain the vital error of
being class legislation of the most Of
fensive kin and even If enacted into
law | believe that the law would right
~ be held unconstitutional. Moreover,
the labor people are themselves now
beginning to invoke the use of the
power of injunction. During the last
ten years, and within my own know.
edge. at least fifty injunctions have
obtained by labor unions in New
York city alone. most Of them beng
to protect the union label Ga property
but some being obtained for
other reasons against employers. The
power OF injunction Is a great equi-
remedy, which should on no &C
count be destroyed. But safeguards
should be erected against its abuse. ]
that some such provisions as
| advocated a year ago for
the abuse OF the issuance of
injunctions should be
In substance, provision should
be made that no injunction or tempo
rary restraining order issue otherwise
on notice. except whore irrepara-
injury would otherwise result: and
in such case a hearing on the merits Of
he order should be had within a short
fixed period. and. if not then continued
hearing. it hould forthwith
- r,, TNstl-s -l~,,1J no N-rJo,zl
and the chance OF delay
ninimiZed in every way. Moreover. I
believe that the procedure should he
defined. and the Judge required
.ninutely to state the particulars both
IF his action and of his reasons there
so that the congress can If it de-
examine and investigate the
same.
The chief lawmakers in our coun-
.ry may be. ana often are, the judges,
they are the tinal seat of au-
Iact. Every time they interpret con
property, vested rights, due
process Of law, liberty, they neces-
'arily enact into law parts of d system
If social philosophy; and as such in
to all lawmaking. The de-
isiOns of the courts on economic and
'Oclal questions depend upon their
economic ana social philosophy: and
or the peaceful progress of our peO-
dc during the twentieth century we
hall W most to those Judges who
old to "A twentieth century economic
nd social philosophy and not to a
1ng outgrown philosophy. which was
tself the product of primitive
: conditions. OF course a Judges
on progressive social philosophy
re entirely second in Importance to
is possession of a high and fine char
cter: which means the possession of
uch elementary virtues as honesty,
Ourage and fairmindedness. The
ldge who owes his election to pander-
lg to dcmagogic sentiments or class
atreds n prejudices. and the judge
he owes either his election or his
to the one Or the fa-
or Of a great corporation, are alike
nworthy to sit on the bench. are alike
to the people; and no pro-
lndity Of legal learning, Or correct
ss OF abstract conviction on queS- I
ons of public policy. a serve as an !
fset to such shortcomings. But it is {
|so true that Judges. like executives 7
nd Legislators. should old sound !
Jews on the questions OF public pol S
" which are OF vital interest to the !
eop!e. J