Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1909-01-09
JuDcE-MADE LAW.


out Of their disregard Of an injunction.
which was considered contempt Of the
court.
II Is clearly opposed 10 the theory
of our institutions for courts 10 make
laws; yet IN the case Of punishment
for contempt that is substantially
what they do.
As TO mjunctlons "a court OF equity
may properly be asked 20 grant one
whenever Il seems necessary TO pre-
vent the doing Of some act that Will
result In such injury 10 ones property
that damages recovered afterward by
suit at law viii not be a sufficient
compensation to repair the injury.
such a case would occur where one
seeks TO prevent the destruction Of
his trees or the infringement of his
copy-nght. or where he seeks 10 pre-
vent others from creating a nuisance,
making noises at unreasonable hours
near his dwelling In case OF emery
eucy the injunction win be temporary,
and viii continue IN force until "a hear
ing and then. II the complainant
makes out his case, the injunction win
be- made perpetual Any such decree
by a court In equity Is simply an
order from the court to the party
against whom II Is directed requiring
him to do or 70 refrain from doing
some act named and explained In the
proceedings
Now. suppose person dlsregards
the Injunction. does IL necessarily fol-
low that he thereby expresses or IN
tends any contempt OF the legal tri-
bunal? We think not Il is entirely
a question Of circumstances
II may be that he must act 20 save
his property. 70 aid his friends or 10
defend his interests In any form; and
or to "a reasonable man" 20 be neoes-
sary. Il is difficult TO perceive wherein
he shows contempt Of the courts au-
thority. He expects to pay for any
damage no may wrongfully do to his
adyersary's property or reputation. but
Is Il right 60 make him suffer also
for any vexation which his course Of
action may have produced In the mind
OF the Judge who granted the inJunc-
tlong
A sentence for contempt Is de-
clslon that the offending party has
violated some law that Is not on tho
statute hooks. not On the unwutten or
common law. but solely In the mind
Of the court II Is not law IN any
broad sense. It Is an exercise OF arbl-
trary win possibly It Is a mere within.
The law books politely say that it is
something left to the discretion OF the
Judge. IN general II has been used
with admirable discretion; but in-
stances OF ~ questionable employ
ment are not wanting, and occasions
of popular resentment against q have
sometimes arisen
n ~ true that the lawyers and JUDGES
do act as artihcers on makers. or
rather as mouldcrs OF the law when
they apply b to new cases. and un-
der cover OF Interpreting the old law.
they often introduce new principles.
This seems necessary part-an ln-
evltahle result-of tho growth of our
fystom of common or unwnttoa Jaw,
but even this much of laW-makug hy
tine courts has always been regarded
with lmpatlonce IN this country aud
mo- encouragement 90 lts extension has
over found much favor with either
the people COR tho iur.sts
40 a the function or che legislature.
ON the American theory. 60 inuovato;
Tor 10 is tho desire or object of the
legislator Co do away with something
ola and establish what is new. ON
one other hand, Do IFS the province of
the tribunal not 90 lnnoyato hut O.
declare. ana apply only what already
exists as hW judicial legislation II
sometimes unavoidable, Is always OBJ
uuAlous to republican Institutions. ANA
really dangerous t0 thcul
JudEo-made law. or law made by
one man say. ule dean VI the Iu-
diana law school in text book Doe
has written for tho use of students.
"is. ln this country at least an abom-
inution. 10 s usurpaton by ono
branch of the government unon the
powers of another 10 h. the foulest
injustice 10 remove landmarks. and