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The Commoner.
14
YOLUME 8, NUMBER 30
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'which nn omployo injured In tho
'services of his employer does not
'loso nil his right to recover becauso
of slight negligence on his part.
"Thou there Is tho act providing
'for compensation for Injury to gov
ernment employes, togothor with tho
various statutes requiring safety ap
pliances upon interstate commorco
railroads for tho protection of their
employes, and limiting the hours of
their employment. These are all
instances of tho desire of tho repub
lican party to do justice to tho wage
earner.
Doubtless a mcro comprehensive
measuro for compensation of gov
ernment employos will bo adopted
in the future; tho principle in such
cases has been recognized, and in
tho necessarily slow course of legis
lation will bo more fully embodied
in definite statutes.
"Tho interests of the employer
and employe novor differ except
when It comes to a division of the
joint profit of labor and capital into
dividends and wages. This must l-o
a constant source of periodical dis
cussion Taotweon tho employer and
the employe, as Indeed are the other
terms of the employment.
"To give to employes their proper
position In such a controversy, to
enable them to maintain themselves
against employers having great cap
ital, they may well unite, becauso
in union there is strength and with
out it each individual laborer and
employe would be helpless. The
promotion of industrial peace
through the instrumentality of the
trade agreement is often one of the
results of such union when intelli
gently conducted.
"There is a large bpdy of laborers,
liQwever, skilled and unskilled, who
are not organized into unions. Their
rlghtB before the law are exactly.
tho same as those of the union men,
and are to be protected with tho
same care and watchfulness.
"In order to induce their employ
er into a compliance with their re
quest for changed terms of employ
ment, workmen have the right to
strlko In a body. They have a right
to use such persuasion as they may,
provided it does not reach the point
of duress, to lead their reluctant
colaborers to join them in their
union against their employer, and
they have a right, if they choose,
to accumulate funds to support those
engaged in a strike, 'to delegate to
officers the power to direct tho ac
tion of the union, and to withdraw
themselves and their associates from
dealings with, or giving custom to
those with -whom they are in con
troversy. "What they have not tho right to
do is to injure their employer's
property, to injure their employer's
ousiness by use of threats of meth
ods of physical duress against those
who would work for him, or deal
with him, or by carrying on what
is sometimes known as a secondary
boycott against his customers or
those with whom ho deals in busi
ness. All those who sympathize
With them may unite to aid them in
their struggle, but they may not
through the instrumentality of a
threatened or actual boycott compel
third persons against their will and
having no interest in their contro
versy to come to their assistance.
These principles have for a great
many years been settled by the
courts of this country.
. "Threatened unlawful injuries to
business, like those described above,
dan only be adequately remedied by
an injunction, to prevent them. The
jurisdiction of a court of equity to
onjoln in such cases arises from the
character of tho Injury nd ,
method of infllctln- it and tho facF
nii. ouii, iui uuiunges otters no ade
quate remedy.
"The. unlawful injury is not usu.
ally done by one single act which
might bo adequately compensated
for in damages by a suit at law, but
it is the result of a constantly re
curring series of acts, each of .which
in itself might not constitute a sub
stantial Injury or make a suit at
law worth while, and all of which
would require a multiplicity of suits
at law. Injuries of this class have
since the foundation of courts of
equity been prevented by injunction.
"It has been claimed that injunc
tions do not issue to protect anything
but property rights and that busi
ness is not a property right; but
such a proposition is wholly incon
sistent with all the decisions of the
courts. The supreme court of the
United States says that the injunc
tion is a remedy to protect property
or rights of a pecuniary nature, and
we may well submit to the consid
erate judgment of all laymen wheth
er tho right of a man in his business
is not as distinctly a right of .a pe
cuniary nature as tho right to his
horse or his house or the stock of
goods on his shelf; and the Instances
in which injunctions to protect busi
ness have been upheld by all courts
are so many that It is futile further
to discuss the proposition.
INJUNCTIONS
"It is difficult to tell tho meaning
a defendant in effect to maintain tho
status quo until a hearing. Such a
process should issue only in rare
cases where the threatened change
of the status quo would inflict irre
parable injury if time were taken to
give notice and a summary hearing.
"Tho unlawful injury usual in in
dustrial disputes, such as I have de
scribed, 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 casefc even in in
dustrial disputes where a restrain
ing order might properly be issued
without notice, but generally I think
it is otherwise. In some state courts
and in fewer federal courts the prac
tice of issuing a temporary restrain
ing order without notice merely to
preserve tho status quo on the
theory that It won't hurt anybody
has been too common.
"Many of us recall that the prac
tice has been pursued in other than
industrial disputes, as, for instance,
in corporate and stock controversies
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 it was secured.
Indeed, the chances of doing injus
of tho democratic platform upon this tlce on an ex parte application are
subject. It says:
. " 'Questions of judicial practice
have arisen especially in connection
with .industrial disputes. We deem
that the parties to all .judicial pro
ceedings should bo treated withrigid
impartiality, and that injunctions,
should not. be Issued in any cases
in which Injunctions would not issue
if nb. industrial dispute were' in
volved. .
"This declaration is , disingenuous.
It. seems to have been .loosely drawn
with the especial purpose of render
ing it susceptible to one interpreta
tion by one set of men and to a
diametrically opposite interpretation
by another.- It does not aver that
injunctions should not issue in in
dustrial disputes, but only that they
should not issue merely because they
are industrial disputes, and yet
those responsible for the declaration
must have known that no one has
oyer maintained that the fact that a
dispute was Industrial gave any
basis for Issuing an injunction in
reference thereto.
"Tho declaration seems to be
dr.awn in Its present vague and am
biguous shape in order to persuade
some people that it is a declaration
against the Issuing of injunctions
in any industrial dispute, while at
the same' time it may be possible to
explain to tho average plain citizen
who objects to class distinctions that
no Bitch intention exists at all.
"Our position is clear and un
equivocal. Wo are anxious to, pre
vent even an appearance of any In
justice to labor in the issuance of
injunctions, not in a spirit of favor
itism to one set of our fellow citi
zons. The reason for exercising or
refusing to exercise the power of in
junction must be found in the char
actor of the unlawful injury and not
In tho charactor or class of the per
sons who inflict this Injury.
"The man who lias a business
Which is being unlawfully Injured
Is entitled to the remedies which- the
law has -always given him, no matt
ter who has Inflicted the injuries
Otherwise we shall have class legis
lation unjust in principle and likeT
ly to sap tho foundations or a frep
government.
"I come now to the question of
notice before Issuing an injunction.
au io u, luuiuuiieuuu riuo ol general
jurisprudence that ho man shall bo
affected by a judicial proceeding!
without notice nnd hearing. Thlsl
rule, however, has sometimes had an!
exception in tne issuing of tempor
ary restraining orders commanding
much increased over those when a
hearing is granted, and there may
be circumstances under which it may
affect the defendant to his detri
ment. "Jn .thecase. of a lawful strlke-the
sending of a .formidable . document
restraining a number of . defendants
from doing a great many different
things which the plaintiff avers they
are threatening to do often so, dia
,co.urages men always reluctant to
go into a strike, from continuing
what is their lawful right. This has
made the laboring men feel that an
injustice Is done in the issuing of a
writ without notice. I conceive that
in tho treatment of this . question it
,1s tho duty of the citizen ,and the
legislator to view the subject, from
the standpoint of the man who be
lieves himself to be unjustly treat
ed, as well as from that of the com
munity at large.
"I have suggested the remedy of
returning in such cases to the origi
nal practice under the old statute
of the United States and the rules
in equity adopted by the supreme
court, which did not permit the issu
ing of an injunction without notice.
In this respect the republican con
vention has adopted another remedy,
that, 'without going so far, promises
to do emcacious in securing proper
consideration in such cases by courts
by formulating into a legislative act
the best present practice. -
"Under this recommendation a
statute may be framed which shall
define with considerable narticular-
Ity and emphasize the exceptional
character of the cases In which re
straining orders may issue without
notice, and which shall also provide
that when they are issued they shall
cease to be operative beyond a short
period, miring which time notice
shall bo served and a hearing had
unless the defendant desires a post
ponement of tho hearing. By this
provision tho injustice which has
sometimes occurred by which a pre
liminary restraining order of widest
application has been issued without
notice, and the hearing of the mo
tion for the injunction has been
fixed weeks and months after its
date, could not recur.
"Tho number of instances in
which restraining orders without no
tice in industrial disputes have Is
sued by federal courts is small, and
it is urged that they do not, there
fore, constitute an evil to be reme
died by statutory amendment. The
small number of cases complained
of above shows the careful manner
in which most federal judges hava
exercised the jurisdiction, but the
belief that such cases are numerous
has been so widespread and has
aroused such feeling of injustice
that more definite specification in
procedure to prevent recurrence of
them is justified if it can be effect
ed without injury to the administra
tion of the law.
"With respect t notice 'the demo
cratic platform contains no recom
mendation. Its only intelligible de
claration in regard to injunction
suits is a reiteration of the plank
in the platforms of 1896 and 1904
providing that in prosecutions for
contempt in federal courts, whero
the violation of the order constitut
ing the contempt charged is indi
rect, i. e., outside of tho presence
of the court, there shall be a jury
trial.
"This provision in the platform of
189 G was regarded then as a most
dangerous attack upon tho power of
the courts to enforce their orders
and decrees, and it was one of the
chief reasons for the defeat of the
democratic party in that contest, as
it ought to have been. The extend
ed operation of such a provision to
weaken the power of the courts in
the enforcement of its lawful orders
can hardly bo overstated.
"Under such a provision a recal
citrant witness who refuses to obey
a subpoena may' insist on a jury
trial before the court can determine
that he received the subpoena. A
citizen summoned as a juror and re
fusing to obey the writ when brought
into court must be tried by another
jury to determine whether he got
the summons. Such a provision ap
plies not- alone to injunctions but
to every ordei which the court is
sues against -persons. A suit may
bo tried in the court of first in
stance and carried to the court of
appeals and thence to" the supreme'
court, and a judgment and decree
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