The following is the bill forming the subject of the hearing:

[S. 3724, Sixty-first Congress, second session.]

A BILL Regulating injunctions and the practice of the district and circuit courts of the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no temporary or interlocutory injunction or temporary restraining order, or decree suspending or restraining the enforcement, operation, or execution of any statute of any State by restraining the action of any officer of such State in the enforcement or execution of such statute shall be issued or granted by any circuit or district court of the United States or by any judge or justice thereof upon the ground of unconstitutionality of the statute, unless the application for the same shall be presented to a circuit judge and shall be heard and determined, upon issue made and proof taken by affidavit or otherwise, by three judges, of whom two shall be circuit judges, and the third may be either a circuit or a district judge, and unless a majority of said three judges shall concur in granting such application. Whenever such application, as aforesaid, is presented to a circuit judge he shall immediately call to his assistance, to hear and determine the application, one circuit judge and one district judge or another circuit judge. Said application shall not be heard and determined until five days' notice of the hearing has been given to the governor and attorney-general of the State and such other persons as may be defendants in the suit: Provided, That if a majority of said judges are of the opinion, at the time notice of said hearing is given as aforesaid, that irreparable loss and damage would result to the applicant unless a temporary restraining order, pending the period of the required notice, is granted, a majority of said judges may grant such order, but the same shall only remain in force until the hearing and determination of the application, upon due notice as aforesaid, has taken place. That an appeal may be taken directly to the Supreme Court of the United States from any order or decree granting or denying, after notice and hearing, a temporary or interlocutory injunction or restraining order in such case, and the hearing of such appeal shall take precedence over all other cases except those of a similar character and criminal cases.

ARGUMENT OF ALFRED P. THOM, ESQ., OF WASHINGTON, D. C.

Mг. THOм. Before proceeding to discuss the special features of this injunction bill I should like to have the opportunity to advert to some of the considerations which seem to me to affect the wisdom, from a national standpoint, of any legislation whatever on this subject. It seems to me that there are certain fundamental objections to any legislation of this character.

The underlying theory of such legislation as is proposed in this bill must be that the National Government is, in a sense, foreign to the States. The bill proceeds upon the theory that it is necessary to have some special restrictions put upon the national power when it goes to dealing with these State questions. For example, a single federal judge can issue an interlocutory injunction against and can declare unconstitutional an act of Congress if contrary to the Constitution of the United States, and a single State judge can issue an interlocutory injunction against and can declare unconstitutional the act of a State if contrary either to the constitution of the State or to the Constitution of the United States.

Senator OVERMAN. There is no conflict between a national judge issuing an injunction and a State judge issuing an injunction. There can be none. I would like to hear you as to any conflict between the two injunctions.

Mг. THOм. That is not what I am trying to show.

Senator OVERMAN. Pardon me for the interruption. Proceed in

your own way.

Mг. THOм. What I am trying to show to your honor is that this is a discrimination against the National Government in favor of the State government, and against the national court in favor of the State court.

As bearing out that contention I call your honor's attention to this: a single federal judge can enjoin and declare unconstitutional an act of Congress, a single State judge can enjoin and declare unconstitutional an act of a State, as contrary to the Constitution either of the State or of the United States; but when it comes to a federal judge enjoining by interlocutory order an act of a State as contrary to the Constitution of the United States-a thing that a single State judge can do-it is proposed in this bill that that shall not be done except by three federal judges.

On its face that is a discrimination against the national judiciary in favor of the State judiciary. It puts a restriction upon the power of a national judge that is not upon the power of a State judge.

Now, what is the reason of this? What has forced any mind to the conclusion that it is proper? It can only be justified by the idea that the National Government is related to the people of the State and to their affairs in a different way from the way in which a State government is related to the people of a State and their affairs. In other words, as I started out to say, it is based upon the thought that in a sense the Federal Government is a foreign government as respects the people of the State and their laws.

Now, is it a wise thing, if your honor please, for Congress to do-to give way to such an idea for a moment? The Constitution of the United States declares that the Constitution of the Union and the

laws made in pursuance thereof shall be the supreme law of the land, anthing in the laws of a State to the contrary notwithstanding.

It seems to me that, in all the controversies that have given rise to this matter, there has been a great confusion of thought in respect to what constitutes the law of a State.

Your honor is a Senator from North Carolina. I was counsel in a case which we both have in mind, in North Carolina; and you are aware that the opponents of the jurisdiction of the federal court in that case were constantly talking about the obligation upon the governor of the State to enforce the laws of the State. You remember publications in which the governor of the State declared that it was his sworn duty to enforce the laws of the State, and you remember, further, that he interpreted the laws of the State to be those written upon the statute books of the State.

It seems to me that such a view is most hurtful and pernicious, if this dual system of government is to continue. It is manifest to any lawyer that not only are the laws of a State not necessarily all to be found in the statute books of the State, but that, if those statutes are contrary to the Constitution of the United States, they are not the law at all, but the Constitution is the law of the State, and the oath of the executive refers to his carrying out and making effective the Constitution of the United States, not the void law of the particular State of which he may be the executive.

Now, can Congress with any wisdom, in dealing with a subject so large as this, touching, as it does, the real relationship between the States and the Nation, and affecting the very integrity of our institutions can it, I say, with any wisdom give color to the thought that the judiciary of the United States, or that the Constitution of the United States, is in any sense foreign to the States? Can it permit a discrimination against the national judiciary in favor of the State judiciary? Can it, with any regard for the continuance of a true conception on the part of our people of the proper relationship of our Constitution and laws, write into the national statute book a provision requiring that three judges of the Union are required to do what one judge of a State may do?

I have been for many years impressed with what was said by the Supreme Court of the United States, speaking through Justice Bradley in the Siebold case, in regard to the true relation of the States to the Union, and in regard to the misconception which permitted a jealousy to grow up on the part of the people of a State against the just powers of the Union.

I quote from what Judge Bradley said in that case:

The greatest difficulty in coming to a just conclusion arises from mistaken notions with regard to the relations which subsist between the State and National Governments. It seems to be often overlooked that a National Constitution has been adopted in this country, establishing a real government therein, operating upon persons and territory and things, and which, moreover is, or should be, as dear to every American citizen as his State government is. Whenever the true conception of the nature of this Government is once conceded, no real difficulty will arise in the just interpretation of its powers. But if we allow ourselves to regard it as a hostile organization, opposed to the proper sovereignty and dignity of the State governments, we shall continue to be vexed with difficulties as to its jurisdiction and authority. No greater jealousy is required to be exercised toward this Government in reference to the preservation of our liberties than is proper to be exercised toward the State governments.

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This power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same place. The one does not exclude the other, except where both can not be executed at the same time. In that case the words of the Constitution itself show which is to yield. "This Constitution, and all laws which shall be made in pursuance thereof, * shall be the supreme law of the land."

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If we indulge in such impracticable views as these, and keep on refining and re-refining, we shall drive the National Government out of the United States and relegate it to the District of Columbia or perhaps to some foreign soil. (Ex parte Siebold, 100 U. S., 393.)

Sitting here as a part of the National Government, clothed with the duty to see that the just balance of powers between the State and the Nation is preserved-having upon you and your associates the high duty of maintaining the proposition that the Government of these United States is not foreign to the States, but is, or ought to be, as dear to them as the governments of their States-can Congress in wisdom adopt any law the underlying motive of which is distrust by the States of the just power of the National Government and the necessary effect of which is to establish a discrimination to the disadvantage of the National Government, in favor of the State, and to the disadvantage of the National judiciary in favor of the State judiciary?

In other words, I wish at the outset of this discussion to bring to your attention the fundamental consideration that the very conception underlying this bill strikes at a just view of the relations of the State and National Governments, and is born of the thought that you must put restrictions upon the National Government, where a State is concerned, in order to protect the States from tyranny and abuse.

If Congress says that, what does it invite the people of the United States to think in regard to their National Government? If that view is indorsed by Congress in its legislation-if it gives way for one moment to the thought that the National Government is foreign to the State, and is tyrannical, and must have restrictions put upon it in order to prevent abuse, what will be the conclusion of the people of the United States who are accustomed to follow the leadership of Congress, and what will then become of their conception of the relations of their National Government to them?

The foregoing is the first fundamental objection to which I invite your honor's attention. I now invite your attention to a second.

The proposed statute is intended to provide only for a case where a citizen or a party to a cause, helpless because in the minority, desires to claim the protection of the Constitution of the United States as to his life, his liberty, or his property rights.

In any fair system of government, ought it to be hard or easy for one of the helpless minority to secure the protection of the constitution and laws of his country?

This bill proposes to make it difficult. As difficult as it is in the circuit to which your honor and I both belong, as I will illustrate in a moment, in some sections of the United States the provisions of this bill would, as I am told, make the securing of constitutional protection absolutely impossible. Let us take the circuit to which you and I belong the fourth circuit. There are in the fourth circuit two circuit judges now. There have been only two in all its history. One of those circuit judges, as your honor well knows, has been in bad health, or was in bad health for over one year, and was not avail

able either to take action on an injunction or for the trial of cases in court. That is liable to happen at any time; and yet, if two circuit judges are to be necessary for an interlocutory injunction, what would happen to a citizen, or to those parties not citizens, whose property rights are involved, when there is only one circuit judge available?

I am told by Senator Long-and I may say that he will no doubt discuss that point more fully than I am doing, and I refer to it only to illustrate what I am now saying-that in his section of the country it will take a trip of 2,000 miles to get to a circuit judge, and after such a journey he can get to only one.

But even if an applicant could get to all of them, when we consider that it is made necessary to have the three together, that there may be a great number of litigants demanding their attention, that they may have some obligation to the United States in the trial of matters given precedence under the laws, such as matters arising under the Sherman Act, and that they may be in the actual trial of the case-in other words, that they may be in the discharge at the time of some actual and paramount duty which they can not leavewhen we consider all these things, we can see how difficult it is made by this bill for a suitor to obtain the protection of the constitution of his country.

Let me illustrate what this means: Your honor recollects very well, I presume, the terms of a statute which, reducing to an arbitrary amount the charges of a carrier, made it a crime for any individual in the employment of the carrier to sell a ticket at any rate in excess of the one fixed by the statute. To the carrier there were property rights involved; to every employee of the carrier there were rights of liberty involved.

Your honor will also recollect how an employee of that carrier, selling tickets under the protection of an order of the United States court, at an amount fixed and authorized by that order, was put in jail and sentenced to servitude.

Senator OVERMAN. If there had been two judges to pass on the constitutionality of that act, do you think that that would occur?

Mг. THOм. If you will permit me to pursue my point, I will come to your question later.

Senator OVERMAN. Pardon me for interrupting.

Mг. THOм. The only way to protect that man in his rights as a citizen, the only way to preserve that company from the loss of its property, was by an order of a court.

Ought it, under those circumstances, to be hard or easy to get that order? Is there any national interest that would be promoted by making it hard? Is there any interest of justice that would not be violated if it were not reasonably easy?

Now suppose that in that condition of affairs it had been necessary to convene a court that was inaccessible, that was engaged about other matters, that must consist of three judges, and could not, or would not, come together, would it have been possible to have meted out protection to the liberty of the army of employees whose liberties were threatened, and to have protected the rights that, according to the decision of the Supreme Court later made in that same case, were being taken away by that unconstitutional statute?

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