Evening star., 1908-01-11

most convenient method of defending him
self to apply to a court of equity for an
injunction against those who give md
cation of their intention to carry on such
methods.
This remedy by injunction has been
very severely denounced and criticised
on the ground that it places in the hands
of judge Legislative, judicial and eXecu-
tive powers; that it enables him to make
the. law for one case against a particular
individual and if lie does not abide by it
to try him and punish him. When this
objection is analyZed it is found TO be
unjust.
An injunction suit does not differ in
the slightest degree from suit brought
after the event SO far as the function
of the court is concerned in declaring
the law, except that the court declares
the law in respect of anticipated facts
rather than in respect of those which
have happened. He has no authority TO
make law. In an injunction suit. as In
any other suit. he merely interprets the
law and applies it to the circumstances.
His judgment in the one case involves
exactly the same precedehts and the
same rules of law as in the other. In
order to save the party plaintiff from
having to bring suit 10 recover for an
injury that he is going to suffer he says
This is an unlawful injury: and as you
threaten to do it l enjoin you from doing
it,
Abuse of Writ of Injunction.
But it is said that the writ of injunc-
ton has been abused in this country In
labor disputes, and that number of in
functions have been issued that ought
never to have been issued. l agree that
there has been abuse in this regard.
President Roosevelt referred to it in his
last message. think it has grown chiefly
from the practice of issuing lnJunctlons
ex parte: that is. without giving notice
or hearing to the defendant.
The injustice that is worked is in this
wise: Men leave employment on strike
intending to conduct themselves peace
ably and within the law. The counsel
for the employer visits judge, presents
an affidavit in which an averment is
made that violence is threatened, injury
to property and injury to business. And
accordingly on this affidavit the judge
issues a temporary restraining order ex
parte against the defendants who are
named IN the petition or bill. The broad
est expressions are used in the writ
frequently too broad. The defendants
are workingmen, not lawyers. They are
not used to the processes of the court.
The expressions of the writ are for
midable. doubt arises in their minds
as to the legality of what they are about
10 do The stiffening is taken out Of
the strike, the men drop back. and the
strike is over, and all before they nave
had a chance in court to demonstrate, as
they might that they had no intention of
doing anyth unlawful or doing any vio-
,ence.
Favors Requiring Notice.
Under the original federal judiciary
act 1t was not permissible for the federal
courts to issue an injunction without no.
tice. There had to be notice and, of
course, hearing. | think it would be
entirely right in this class of cases to
amend the law and provide that no tenn
porary restraining order should issue at
all until after notice and a hearing.
Then the court could be advised by both
sides with reference to the exact situa-
tipn, and the danger of issuing writ too
broad or of issuing a writ without good
ground would generally be avoided.
If, whenever a court issues an injunc-
ton that is improperly worded. that goes
too far. or that ought never TO have been
granted the labor union interested Will
take the matter up to the court of last
resort, it will secure a series of decisions
that will prevent the issue of injunctions
such as some of those they now complain
of. The labor union has a fund, and it
could not be devoted to a better purpose
than fixing the law exactly as 1t should
be under the decision of the court of last
resort.
l should not object at all to the defini-
ton Of the rights of employer and of the
withdrawing employe in labor contro-
versies by statute. | should think that
an excellent way of making clear what
is lawful and what is unlawful But
until that course is pursued the rights
of the parties to such controversies should
be carefully defined by courts of last
first instance will keep within lawful
bounds.