The News-Herald. [volume] (Hillsboro, Highland Co., Ohio) 1886-1973, 1908-07-30

prudence that no man shall be affected
by a judicial proceeding without notice
and hearing. This rule, however, has
sometimes had an exception In the Is
suing Of temporary restraining orders
commanding a defendant In effect to
maintain the status gao until a hear
ing. Such n process should Issue only
In rare oases where the threatened
change of the stdtgs quo would infiict
irreparable injury II time were taken
to give notice and summary hearing
The unlawful injury usual in indus
trial disputes, such as l have describ-
ed, does not become formidable except
after sufficient time In which to give
the defendants notice and a hearing.
I 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, think II 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 status quo
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 q
step Of great advantage to the one who
secured IT, and corresponding disad-
vantage to the one against whom II
was secured. Indeed, the chances of
doing Injustice on an ex-parte applica-
tlon are much increased over those
when a hearing is granted, and there
may be circumstances under which 1t
may affect the defendant to his detr-
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 a strike from continuing what Is
their lawful right This has made the
labor1ng 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 rs the duty
of the citizen and the legislator to
view the subject from the standpoint
Of the man who believes himself to be
uniustly treated, as well as from that
of the community at large. l have
suggested the remedy of returning in
such cases to the original practice un-
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 efflcacious.
Effect Of Jury Trial.
Under such provision recalcltrant
witness who refuses to obey a subpoe
ma may insist on jury trial before the
court can determine that he received
| the subpoena. 4 citizen summoned as
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 provision
applies not alone to injunctiors, but to
every order which the court issues
against persons. 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 If the decree involves
the defendants doing anything or not
doing anything, and he dlsobeys 1t, the
plalntlff who lfas pursued his remedies
In lawful course for years must to So.
cure his rights, undergo the uncertain
ties and the delays of jury trial be-
fore he can enjoy that which Is his
right by the decision Of the highest
court of the land. | say without hesi-
tation that such a change will greatly
impair the indispensable power and
authority Of the courts Securing to
the public the benefits Of the new stat
utes enacted In the present Admins
tration. the ultimate instrumentality to
be resorted to is the courts Of the Unit
ed States. If now their authority Is to
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 effi-
Client enforcement? Those who advo-
cate this Intervention OF jury In such
cases seem to suppose that this change
In some way will inure only to the BEN
eft OF the poor workingman. AS a
matter Of fact. the person who will Sc
cure chief advantage from It is the
wealthy and unscrupulous defendant,
able to employ astute and cunning
counsel and anxious to avoid justice.
The administration OF Justice lies at
the foundation Of government The
maintenance Of the authority OF the
courts is essential unless we are pre-
pared TO embrace anarchy. Never in
the history of the country has there
been such an insidious attack upon the
judicial system as the proposal 10 inter
Ject jury trial between all orders Of
the court made after full hearing and
the enforcement Of such orders.