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Judge John Gibbons, of the Circuit Court of Illinois, says:
I desire to say that in my opinion there is a danger to-day threatening the very existence of the republic as gigantic as that which precipitated the rebellion and well-nigh wrought the ruin of our Union. Now, it comes, as ever, in the seductive guise of the law and under the solemn authority of the court. . . . In their efforts to regulate or restrain strikes by injunction they are sowing dragons' teeth and blazing the path of revolution.
Judge M. F. Tuley of the Appellate Court of Illinois says:
Such use of the right of injunction by the courts is judicial tyranny, which endangers not only the right of trial by jury, but all the rights and liberties of the citizens. If Congress has the power, it should promptly put an end to "government by injunction " by defining and limiting the power of the federal courts in the use of the writ.
J. H. Benton of Boston, in an address before the Bar Association, said:—
The courts have gone too far. It is impossible for them to go on in the course they have taken and retain the confidence of the people or preserve their own powers.
In view of the widespread feeling of dissatisfaction among a large class of our people, in view of the growing doubts of men learned in the law as to the present use of the injunction, we deem it our duty to recommend the passage of the following bill:
AN ACT LIMITING THE USE OF INJUNCTIONS AND RESTRAINING ORDERS IN CERTAIN CASES.
Be it enacted, etc., as follows:
That no restraining order or injunction shall be granted by any 2 court of the Commonwealth of Massachusetts in any case, be3 tween an employer and an employee, or between employers and 4 employees, or between employees, or between persons, or between 5 persons employed to labor and persons seeking employment as 6 laborers, or between persons seeking employment as laborers, or 7 involving or growing out of a dispute concerning terms or con
8 ditions of employment, except to prevent irreparable injury to 9 property or to a property right; and such property or property 10 right must be particularly described in the application, which 11 must be in writing and sworn to by the applicant, or by his, her 12 or its agent or attorney. For the purposes of this act no mere 13 right to continue the relation of employer and employee or to 14 assume or create such relation with any particular person or 15 persons, or at all, or to carry on business of any particular kind 16 or at any particular place, or at all, shall be considered as prop17 erty or a property right.
We believe that the bill recommended by the majority is a step in the right direction, and will go a long way towards remedying many of the evils connected with the use of the injunction. In the event of the bill recommended by the minority being rejected by the Legislature, we feel warranted in saying that the majority measure will afford some relief, and for that reason we believe that we can consistently sign it.
WILLIAM W. CLARKE.
DANIEL J. McDONALD.
FRANCIS J. FENNELLY.
RECOMMENDATION OF A MINORITY OF THE COMMITTEE IN REFERENCE TO TRIAL BY JURY IN CONTEMPT CASES.
While I see no reason to substantially alter or modify the views of the majority report of the committee herein expressed, excepting as to that which relates to a trial by jury, I cannot agree with the majority report as to the bill recommended in relation to persuasion, but it is not my purpose to dissent from the same; neither can I support the minority. report of the committee, or the proposed Pearre bill offered. by them, as in my opinion it is too drastic and revolutionary. I therefore submit recommendations which, if adopted, would go a long way toward the solution and disposition of this much disputed question. I believe that there is a middle ground upon which we can stand, and in offering these recommendations, in addition to those offered by the committee, I do it for the greatest good of the greatest number. I submit that the majority of the committee in their wisdom have offered a bill which does not fully meet with the needs of the situation; and that the dignity and integrity of our courts are such that we should not tamper with their prerogatives. We should allow the courts in their discretion and wisdom to issue restraining orders as they see fit, so far as it is necessary to prevent wrongdoing. The minority report, on the other hand, goes too far; and the Pearre bill offered would, in my opinion, practically take from our courts the power with which they are invested when a labor dispute arises.
I do not believe that the most enthusiastic supporter of organized labor feels that our equity courts should be shorn of their powers. With organized labor unincorporated in this Commonwealth, the Pearre bill, which is drafted on the basis of the English law in regard to labor disputes, and
under which law organized labor is virtually incorporated, would work to the disadvantage here of the very persons whom it is intended to aid, as well as the best interests of the manufacturers of the Commonwealth.
The recommendations offered simply change the method of procedure of the courts, and make plain that which is now somewhat ambiguous. There are many persons who belong to labor organizations, and those, also, who do not belong to such organizations, who believe that the rights and privileges accorded by the Constitution are being usurped by the equity courts, in that they are denied the right to a trial by jury.
It has been decided that the right to a trial by jury in contempt cases was not secured by the Constitution. This leaves absolutely open the question as to whether such a right ought to be granted, and I believe that it should be and can be granted by law, although not secured by the Constitution, and respectfully submit that the equity courts in this respect have gone too far in denying a defendant in an equity suit arising from a labor dispute the right to a trial by jury for a contempt committed outside the immediate presence of the court; and for this reason, if a contemner (that is, the person charged with the violation of an order of injunction) is cited before the court for the violation of an order of the court under the blanket injunction, so called, and claims that he has not been served with any order from the court and that he has absolutely no knowledge of the issuance of the restraining order, he should be entitled to a jury trial on the facts, as to whether or not he is guilty of any such violation.
There is a growing feeling that in contempt proceedings, and the very name of the proceeding suggests it, the judge issuing the restraining order has a personal sensitiveness in respect to its violation, and therefore that he does not bring to the trial of the issue presented by the charge of contempt of his order the calm judicial mind which insures justice. For instance, a certain judge of the Supreme Court of Massachusetts sentenced a contemner to five months' imprisonment for the violation of an order of
the court. No order of the court had been served upon him, and he claimed that he knew nothing about the issuance of the restraining order of the court. Whether or not he was telling the truth was for the judge to decide. The judge decided that he was not. While I have every confidence in and respect for the action taken by the learned judge, yet I think that this defendant should have been given a jury trial by his peers, as is given to any person who is charged with a crime or misdemeanor. I believe that if issues of fact were framed by the court for a trial by jury in a case as above cited, much of the uneasiness and discontent now manifested by persons most interested in these injunction proceedings would be allayed and eliminated, and that the courts would welcome the passage of a bill defining the exact procedure to follow.
If jury trials are granted, there should be a provision requiring the person complained of to give a bond to the satisfaction of the court to protect against further violation of the restraining order; and it should also be provided that such jury trial should speedily follow.
With such provisions, trial by jury could be granted without endangering the rights of the petitioners, and without in any way interfering with the powers of the courts to prevent irreparable injury, which is the object of the injunction.
Equity courts were not constituted for the purpose of restraining a crime as a crime, but to give relief where there was no adequate, plain and complete remedy at law, or where irreparable injury was threatened.
The essential difference between a court of equity and a court of common law, with reference to this subject, lies in this: the former can prevent or restrain injury to property or personal rights; the latter can only give damages after the injury is done.
The power of the court of equity is exercised only when damages in a court of law would be no adequate redress.
The power of the equity court, if it is to be of any effect whatever, must therefore be exercised before the injury is done.
If an injunction to prevent injury cannot be granted until the injury is done it is of course quite useless to grant it at all.