APPENDIX Q.

GOVERNMENT BY INJUNCTION.

PAPER BY

JAMES BISHOP, JR.,

OF EASTMAN.

To the Georgia Bar Association:

As an individual member of the Committee on Federal Legislation I desire to express some views which I entertain on one very important subject, to wit: what some people are pleased to term

"GOVERNMENT BY INJUNCTION."

For several years past much has been said on this subject in political speeches and in the newspapers throughout the country. A great deal of what has been said and written emanates from men who have no conception or comprehension of the subject with which they have undertaken to deal, and their diatribes may therefore be pardoned upon the ground of ignorance and imbecility. We can afford to forgive them because they know not what they do. Many of the weak fulminations on the subject bear unmistakable evidences of having been sired by those miserable creatures designated in common parlance as demagogues, who never trouble themselves to inquire whether a thing is right or wrong, and whose only care is to know whether at any given time a thing is popular or unpopular with the 'O oλλot, and if they can satisfy themselves on this point their advocacy of or opposition to any man or measure is determined already, and whether their attitude in regard to any particular measure is tempo

rary or permanent depends entirely upon whether that measure remains popular or unpopular, regardless of any principle in-. volved. The bleatings of the two classes mentioned are not to be dignified by calling them arguments.

There have been, however, some forcible arguments advanced both pro and con by thoughtful and well-informed persons seeking honestly for the truth and desiring only to know what is best for the welfare of the country and for the protection of the right of all citizens to be secure in the enjoyment of life, liberty and property.

As far as I have observed most of the utterances in regard to the practice of the courts on the subject of so-called government by injunction have reference to the Federal courts, and most of the suggestions in regard to legislation on this subject have had reference to Federal legislation. Just why this is so I am at some loss to fully understand, for there is hardly any argument touching the practice of the Federal Courts on the subject that would not be equally applicable to the practice of State Courts, or regarding Federal legislation on the subject that would not apply with equal force to State legislation, for there is perhaps as much government by injunction in the State courts as in the Federal courts; indeed, there is doubtless a much more frequent demand for the exercise of this judicial function of equity jurisprudence by the State courts than by the Federal courts.

Properly exercised, there is no more important power possessed by any court than the power of a court of equity to enjoin and prevent the wanton taking or destruction of private property or the commission of any serious injury or damage to the same, and it is infinitely better to prevent mischief or damage before it is done than to undertake to repair the mischief after it is done. Even in cases where the party seeking or threatening to do the mischief is solvent and able to respond to a judgment in damages, and where the damages are not altogether irreparable and are capable of approximate or exact computation and ascertainment, still it is better to prevent the wrong from being done than to undertake to repair it after it is done. The government has en

tered into a compact as it were with its citizens to protect them in their rights. On sound principle, therefore, a citizen has the right, when he brings to the attention of the government through its legally constituted tribunals and authorities the fact that some person or persons are doing or threatening to do him a serious wrong or injury by an infringement of his constitutional rights, to expect the government, through the law and those appointed or elected to interpret and administer the law, to prevent such wrong or infringement, if it can be prevented, and not to prevent it would be a violation by the government of the solemn compact with its citizens. To subject the party injured to great delay and expense by remitting him to the remedy of recovering by the slow process of law damages for the injury done would not be adequate protection nor a substantial compliance with the government's promise and undertaking to protect him. Besides, preventing the invasion of personal and property rights often prevents bad personal feelings and difficulties and even bloodshed and the taking of human life that sometimes result from such invasions.

But when a lot of irresponsible, insolvent and reckless persons band themselves together and wantonly destroy vast quantities of property and endeavor to break up large business enterprises in which a great deal of capital is invested and which give employment to many people, by intimidating, threatening and preventing persons who desire and need employment and money from accepting legitimate employment or performing honorable and useful labor, or by force, menaces and violence preventing public carriers from moving or hauling goods and freights, and thus seriously interfering with trade and commerce and stagnating business, in such cases it seems inconceivable that any honest, fair-minded and intelligent man could be opposed to preventing such mischief by injunction or by the exercise of any and all the powers and functions of the government or any department of the government, either State or National, if necessary to enforce the constitutional right of every citizen of this great country to be secure in the enjoyment of life, liberty and property.

To prevent such wrongs the dictates of reason and justice suggest that the fullest powers of the courts should be promptly exercised, and if the powers already granted to the courts are inadequate to meet the exigencies those powers ought to be enlarged, and if necessary to maintain and vindicate the majesty of the law and to convince lawless and reckless men that no citizen shall be deprived of life, liberty or property, without due process of law, and that the arm of the law is strong enough, and the powers of the government are broad enough to enforce the sacred right of security in the enjoyment of life, liberty and property, the military forces of the government should be unhesitatingly called to the aid of the courts. Thus should the government, in its power, come to the protection of any of its citizens and do exact justice between them, no matter how exalted may be their condition nor how low their estate, whether they be corporations or private persons, rich or poor, white or colored, influential or obscure. Such an impartial administration of justice not only commands the respect of all men, but as that eminent jurist, Judge Emory Speer, said in charging a jury, "it is the firmest bond of the people to government.'

Unless the government can and will enforce those rights which it has undertaken by the fundamental law to guarantee, it certainly will not command the respect to which it ought to be entitled both from citizens and aliens. But let the government demonstrate that it is able to perform and that it will perform and execute every guaranty of protection and security that it has made to its citizens, and the respect and admiration of the world as well as the love of all law-abiding and patriotic citizens must inevitably be the consequence.

To do this is not tyranny, nor does it unnecessarily abridge our boasted American freedom. There is nothing in our organic law that authorizes any man or set of men to so use and abuse the freedom and liberty guaranteed to them as to nullify other parts of the same organic law guaranteeing to all men the right to be secure in the enjoyment of life, liberty and property, and further guaranteeing that no man shall be deprived of either of these

without due process of law. Liberty as understood in our constitution does not mean license, and in guaranteeing the highest degree of liberty possible consistent with the welfare and happiness of the people and with the good order, peace and dignity of the government, it was never intended to grant a license to some men to trample upon, disregard and destroy the rights and property of others, and every attempt, threat or purpose to do so ought to be restrained, forestalled and prevented by the government by any means in its power. Absolute freedom or license can exist only where there is no law and no government, and that is barbarism. Wherever there is enlightenment, law and civil government, there must of necessity be some restraint of liberty. And what right has any man to complain if the government, through the tribunal constituted for the purpose, restrains and prevents him from doing a serious wrong or from depriving another of his rights or his property? Is it any worse to restrain and prevent him from committing such wrong than it is to punish him for it after he has done it? He can appeal to the same law that would prevent him from wantonly injuring another to prevent another from wantonly injuring him, and surely there can be nothing unjust or unfair in that. The fact, if it be a fact, that courts may sometimes abuse the powers conferred upon them by the law is no argument against the law itself or against the reason and justice of the law. The remedy is not to change the law or to take· away from the courts the necessary power conferred by it, but the proper remedy is to correct the abuses in the administration and enforcement of the law, and if necessary to remove from office those who are guilty of such abuses, if any. The exercise of the power itself is absolutely necessary for the preservation of order and for the protection of persons and property, and essential to good government.

It is true that the granting of injunctions and other extraordi-nary writs by courts of equity ought to be done with the utmost care and circumspection, and especially should judges exercising chancery powers be very careful not to enjoin or restrain defendants from exercising what they bona fide claim to be their rights