The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-12-07

state courts as to that In federal
courts, and without making invidious
distinction it is perhaps not too much
to say that. speaking generally, the de-
fects are less In the federal courts
than in the state courts. But they are
very great in the federal courts. The
expedition with which business is dis
posed Of both on the civil and the
criminal side of English courts under
modern rules Of procedure makes the
delays in our courts seem archaic and
barbarous. The procedure in the fed
eral courts should furnish an example
for the state courts.
1 presume it is impossible without
an amendment to the constitution to
unite under one form Of action the
proceedings at common law and pro-
ceedings in equity in the federal
courts, but it is certainly not impos-
sible by statute to simplify and make
short and direct the procedure both at
law and In equity in those courts. 1t
is not impossible to cut down still
more than it 10 cut down the jurisdic-
ton Of the supreme court so as to con-
fine it almost wholly to statutory and
constitutional questions. Under the
present statutes the equity and ad-
miralty procedure in the federal courts
is under the control Of the supreme
court, but in the pressure Of business
to which the court is subjected it is
impossible to hope that a radical and
proper reform of the federal equity
procedure can be brought about.
therefore recommend legislation pro-
viding for the appointment by the
president OF commission with author
ity to examine the law and equity
procedure Of the federal courts Of first
instance, the law of appeals from
those courts to the courts Of appeals
and to the supreme court and the costs
imposed In such procedure upon the
private litigants and upon the public
treasury and make recommendation
with a view to simplifying and ex-
pediting the procedure as far as pos
sible and making 1t as inexpensive as
may be to the litigant # little means.
The platform of the successful party
in the last election contained the fol-
lowing:
1.-THE Republican party will uphold
at all times the authority and integrity
Of the courts, state and federal, and
will ever insist that their. powers to
enforce their process and to protect
life, liberty and property shall be pre-
served inviolate. We believe, however.
that the rules Of procedure In the
federal courts with respect to the is
suance of the writ of injunction should
be more accurately defined by statute
and that no Injunction. or temporary
restraining order should be issued
without notice, except where trrepara-
BILE injury would result from delay, In
which case speedy hearing there
after should be granted"
recommend that In compliance with
the promise thus made appropriate leg
islation be adopted. The ends Of JUS
tice will best be met and the chief
cause Of complaint against i'll consid-
cred injunctions without notice will be
removed by the enactment of statute
forbidding hereafter the issuing of any
injunction or restraining order, wheth-
er temporary or permanent, by any
federal court without previous notice
and a reasonable opportunity to be
heard on behalf Of the parties to be
enjoined unless it shall appear to the
satisfaction Of the court that the delay
necessary to give such notice and hear
ing would result In irreparabIe injury
to the complainant and unless also the
court shall from the evidence make a
written finding, which shall be spread
upon the court minutes, that imme-
date and irreparable injury is likely
to ensue to the complainant and shall
define the injury, state why it is IT.
reparable and shall also indorse on the
order issued the date and the hour
of the issuance of the order. More
over, every such injunction or re-
straining order issued without previ-
Gus notice and opportunity by the de-
PENDANT to be heard should by force
of the statute expire and be Of no ef-
feet after seven days from the issu-
ance thereof or within any time less
than that period which the court may
fix unless within such seven days or
such less period the injunction or
order is extended or renewed after
previous notice and opportunity to be
heard.
My judgment is that the passage of
such an act, which really embodies
the best practices in equity and is very
like the rule now in force in some
courts, will prevent the issuing Of ill
advised orders of injunction without
notice and will render such orders
when issued much less Objectionable
by the short time in which they may
remain effective.
Antitrust and interstate Commerce
Laws.
The Jurisdiction Of the general gov
eminent over interstate commerce has
led to the passage of the so called
Sherman antitrust law" and the "in-
terstate commerce law" and its
amendments. The developments in the
operation of those laws as shown by
fr1Itofy,nonfc trials judicial decision