, 1908-07-28

.irreparaole injury if time were taken
to give notice and a summary hearing.
Time for Notice.
The unlawful injury usual in indus
trial disputes, such as ! have describ.
ed. does No. become formidable except
after sufficient time in which to give
the defendants notice and q hearing. l
do not mean to say that there may not
be cases even In Industrial disputes
where a restraining order might prop
erly be issued without notice, but, gem
orally. Z think 1t is otherwise. In
some state courts, and in fewer federal
courts, tile practice OF issuing a tenn
porary restraining order without no
tice merely to preserve the status quo
on the theory that 1t wont hurt any
body, has been too common.
other Than Labor Disputes.
Many OF us recall that the practice
base been pursued in other than in
dlstrial disputes. as. for instance. In
corporate and stock controversies like
these yer the Erie railroad, In which
a stay order without notice was re-
garded as a step of great advantage to
the one who secured 1t, and a CORE
pandingdisadvanagetothe one against
whom 1t was secured. Indeed, the
chances OF doing injustice on an ex-
parte application are much increased
over those when a hearing is granted,
and there may be circumstances UNI
der which 1t may affect TIE defendant
20 his dctriment.
Feels Weight of Injustice.
In the case of a lawful strike, the
sending of a formidable document re-
stra.ning a number of defendants from
doing a great many different things
which the plaintiff AYERS they are
threatening to do, often so discourages
men always reluctant to go into a
strike from continuing what is their
lawful right. This has made the labor
ing mar feel that an injustice is done
in the issuing of a writ without no
tice. 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 believes himself to be unjustly
treated, as well as from that of the
community at large.
Remedy Suggested.
] have suggested the remedy Of re
| turning III such cases to the original
| practice under the old statute of the
United States and the rules in equity
adopted ty the supreme court, which
did not permit the issuing of an in
junction without notice. In this re
spect, tn, republican convention has
adopted another remedy, that. without
| going SO idr, promises to be ~eficacious
in securing proper consideration tn
such ase by courts by formulating
I 49, = r~-..1-ts~1 ~ kh@ h4.k rRAnani
practice.
Framing a Statute.
Under This recommendation, q sta
tute may he framed which shall define
with considerable particularly, anc
emphasize the exceptional character o.
the cases in which restraining order,
may issue without notrce, and which
| shall also provide that when they are
Issued, they shall cease to be operative
beyond a short period, during which
time motto. shall be served and a hear
ing had unless the defendant desires {
postponement of the hearing.
impossible Injustice.
BY this provision the injustice which
has sometimes occurred by which Z
preliminary restraining order OF wild
est application has been issued withou
notice, and the hearing OF the motion
for the injunction has been fixe,
weeks and months after its date, coult
nor recur.
small Number Of Cases.
The number OF instances in which
Restraining orders without notice
in Industrial disputes have been ISSUED
by fedora. courts is small. and 1t II
urged that they do not therefore con
stitute an evil to be remedied by sta
| tutory amendment. The small mum
her of cases complained Of above
shows thu careful manne In which
most federal judges have exercised the
Jurisdiction. but the belief that sucf
cases are mero has been SO wide
| spread and mas aroused such fevs
ing of injustice that more definite
| specification in procedure to prevent
recurrence of them Is justified If Il
can be effected without injury to the
administrt.tiono f the law.
Democratic Platform Weak.
With respect to notice, the demo
| cratic platform contains no recommen
| dalton. Its only Ineligible declara
| ton in regard to Injunction suits Is 8
reiteraton of the plank in the platform
| of 1896 and 1904 providing that II
| prosecutions for contempt In fedora
| courts, where the violation Of the order
| constituting the contempt charged IL
| indirect, l.. e., outside of the presence
| of the court, there shall be a jury
trial.
| Dangerous Attack on Power OF Courts
This provision In the platform o.
| 1896 was regarded then as a most dan
| gerous attack upon the POWER OF the
! courts to enforce their orders and de
| crees. and it was one of the chief rea
| sons for the defeat of the democratic
party in tnat contest, as 1t ought to
have been. The extended operation Of
such a provision to weaken the power
of the courts in the enforcement OF its
lawful orders can hardly be oyerstated
Effect Of Jury Trial.
Under such a provision a recalcftrant
witness who refuses to obey q
hubpoena may insist on a jury trial be
fore the court can determine that he
received the subpoena. A citizen sum.
moned as a juror and refusing to obey
the writ when brought into court must
be tried by another jury to determine
whether ne got the summons. Such a
provision applies not alone to injunc'
tons, but to every order which the
court issues against persons.
Uncertainties and Delays.
A suit may be tried in the court OF
first instance and carried to the court
of appeals. and thence to the supreme