The Birmingham age-herald., 1908-07-29


 ing defendant in effect to maintain the status quo until a hearing Such process should issue only in rare cases where the threatened change or ths status quo would infiict irreparable m jury if time were taken to give notlce
 and a summary hearing. The unlawtul injury usual in industrial disputes, such as l have described, does not become formidable except after sufficient time in which to give the defendants notice and hearing. I do not mean to say that there may not be cases even in indus trial disputes where a restraining order might properly be issued without notice, but generally I think 1t is otherwise In some state courts, and in fewer federal courts, the practice of issuing a tenn porary restraining order without notice merely to preserve the status quo on the theory that it wont hurt anybody, has been too common. Many of us recall that the practice has been pursued in other than industrial disputes, as for in- stance in corporate and stock contro versies like those over the Erie railroad, in which a stay order without notice was regarded as a step of great ad- vantage to the one who secured it and a corresponding disadvantage to the one against whom 1t was secured. Indeed, the chances of doing injustice on an ex- parte application are much increased over these when a hearing is granted, and there may be circumstances under which it may affect the defendant to his detri- Inent. In the case of a lawful strike the sending of formidable document re- straining a number of defendants from doing a great many different things which the plaintiff ayers they are threat ering to do, cften so diseourages men always reluctant to go into a strike from continuing wEat is their alwful right. This has made the laboring man feel that an injustice is done in the is- suing of writ without notice. l con ceive that In the treatment of this ques- tion it is the duty of the citizen and the legislator to view the subject from the standpoint of the man who believed himself to be unjustly treated, as well as from that of the community at large. I have suggested the remedy of returning in uch cases to the original practice ! under 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 with i out notice.
 In this respect the republican conven- tion has adopted another remedy, that( without going so far, promises to be effcacous in securing proper consider ation in such cases by courts, by for inulating into a legislative act the best present practice.
 
 may be framed which shall define with considerable particularity and emphasize the exceptional character of the eases Tn which restraining orders may issue without notice. and which shall also pro- vide that when they are issued they shall cease to be operative beyond a short period, during which time notice shall be served and hearing had, unless the defendant desires a postponement of the hearing. By this provision the injustice which has sometimes occurred by which a preliminary restraining order of widest application has been issued without notice and the hearing of the motion for the in- junction has been fixed weeks and months after it's date could not recur
 StnalI Number of Cases Furnishing Grounds For Complaint In Federal
 Courts.
 The number of instances in which re-
 straining orders without notice in indus trial disputes have issued by federal courts is small, and it is urged that they do not therefore constitute an evil to be remeded by statutory amendment. The small number of cases complained of above shows the careful manner in which most federal judges have exercised the Jurisdiction. but the belief that such cases are numerous has been so widespread
 
 that more definite specification in pro- cedure to prevent recurrence of them is justified if it can be effected without in jury to the administration of the law. No Provision In Democratic Platform AS To Notice; Only Recommenda-
 ton Trial By Jury.
 With respect to notice, the democratic
 platform contains no recommendation. Its
 only nteligible declaration in regard to injunction suits is reiteraton of the plank in the platform of 1896 and 1904 providing that in prosecutions for con- tempt in federal courts, where the viola ton of the order constituting the con tempt charged is indirect, | e., outside of the presence of the court, there shall be jury trial
 Dangerous Attack on Power of Courts.
 This provision in the platform of 1896 was regarded then as a most dangerous attack upon the power of the courts to enforce their orders and decrees, and it was one of the chief reasons for the de- feat of the democrats in that contest as it ought to have been. The extended op
 eration of such provision to weaken the power of the courts in the enforcement of its lawful orders can hardly be over stated.
 Effect of Jury Trial.
 Under such a provision a recalcitrant
 witness who refuses to obey subpoena may insist on a jury trial before the court can determine that he received a sub poena citizen summoned as juror and refusing to obey the writ when brought Into court must be tried by an- other jury to determine whether he got the summons Such provision applies not alone to iniunctions but 10 every or der which the court issues against per- sons. A suit may be tried in the court of l first instance and carried to the court of l appeals and thence to the supreme court, | and a judgment and decree entered and 1 another issued, and then if the decree | involves the defendants doing anything | or not doing anything, and he disobeys | it, the plaintiff who has pursued his rem | edies in lawful course for years must l to secure his rights. undergo the uncer- | tainties and the delays of jury trial | before he can enjoin that which is his | r'~ht hv the decision of the highest court ] of the land say without hesitation that 1 oh Il change will greatly impair the in l dispensable power and authority of the | courts In securing to the public the ben efits of the new statutes enacted in the present administration the ultimate n- strumentality to be resorted to Is the courts of the United States. If now their authority Is to be weakened in a manner never known in the history of the juris-