The Washington herald., 1908-04-19
Restricting the Federal conrts

! The Senate has taken cognizance Of the
| complaints against notification of State
/ legislation by the Federal judiciary.
/ through the passage Of a bill regulating the
/ Issuance Of injunctions restraining on
the ground Of their unconstitutionality.
/ the enforcement Of State statutes. II is
la moderate measure. but significant Of
/ the belief of the ablest constitutional
! lawyers OF the Senate including Mr..
/ Knox, that the power TO enjoin the oper-
alton of State legislation is too extensive
/ 10 be lodged in a single judge of an
/ inferior FcGeIGi court. The bill. which
was reported unanimously from the Judi
ciary Committee, and passed in the SEN
etc without a dissenting vote provides
/ that injunctions restraining the enforce
ment of State laws on the ground Of
uneonstitutionality, may be issued only
after hearing before a bench OF three
/ judges. of whom at least two shall be
! circuit judges. and only upon the con-
| currence of at least two out of the
! three. Five days notice must be given
OF the hearing on any application, but
/ temporary injunction may be issued if
/
| that irreparable loss would result to the
applicant unless such injunction Is grant
ed An appeal from any order or decree
may be taken directly 10 the Supreme
Court Of the United States. where it
viii have precedence.
| AS Senator Knox expressed IL, "the sole
and simple purpose Of this bill is to pre-
vent a single inferior Federal Judge from
! pronouncing a law Of a State unconstitu-
tional" Senator Overman, OF North Caro-
| lima, thought the people OF State would
be more inclined to accept the decision
of three judges than they would of one
/ subordinate inferior Judge, who simply.
upon petition or upon a hearing, should
tie the hands of State officer from pro-
/ eeeding with the enforcement of the laws
/ of his sovereign State" The require
ment of hearing before a bench of three.
after the lapse of a brief period from the
time OF application. insures greater de-
/ liberation and maturer judgment, thus do
ing away with the midnight injunction.
while it lessons the possibility Of undue
| local or corporate influences that might
be successfully brought to bear upon a
single judge. The only two objectors to
the bill were Senators Burkett and Hey
| burn, representing opposite poles Of opin-
| ion, the former desiring that Federal
/ judges be deprived altogether of the
power to issue injunctions, and the latter
complaining that under the provisions Of
the bill judges at least in the far West
would be unable to issue them quick
enough to protect litigants Mr Hey
/ burns reasons for opposing the bill con-
stitute an excellent argument for its pas
sage for hasty and ill-considered iudg-
ments are precisely what the new re-
striction on the power of Federal judges
/ is designed to prevent
| Like aII compromises involving prin-
eiple, the Senate bill does not settle the
important questions raised by the opin-
ION OF the Supreme Court in the Mime
sofa case. We quite agree with Senator
Bacon that these questions will have to
be dealt with in the near future, for the
jurisdiction Of the Federal courts grows
steadily. A Federal Judge is now trying
to seize, on behalf of foreign creditors.
moneys belonging to the State of South
Carolina and in the custody of its Off
GERS. In the city of New York Federal
court has taken the street railway sys-
TEN out of the jurisdiction of the public
service commission, and by a decree has
abolished the free-transfer privilege
something that the street railway cor
porations themselves would never have
dared to do, for public sentiment could
have expressed itself through local au-
/ thority. There Is something funda-
mentally wrong. it appears TO the lay
mind, in this judicial trampling on local
instrumentalities of government. The
Senate bill, perhaps. does not so far to-