592
THE GREEN BAG
a given statute does or does not violate the Fourteenth Amendment. While this is so, it seems to me that courts, both federal and state, should always bear in mind that comity which has thus far enabled the dual jurisdictions to work together so harmoniously for the public good. And, further, that care should be taken that the procedure shall evince that deliberation that doth so become a judge at all times, and especially when the object of an action is to declare void the deliberate act of the legislative department of a state government. I have in mind an action in which application was made for injunc tion, but, before granting it, counsel representing the state, as well as those representing the plaintiff, were heard fully. The judge wrote his opinion and then granted an injunction upon conditions that would safeguard to the last penny every person interested. The right to grant an injunction under such circumstances cannot be denied, but the propriety of granting, on an ex parte application, an injunction which refuses effect to a statute can and should be questioned. A statute, upon the face of which no im perfection appears, and which will stand, unless it can be proved that it will prevent the property affected from earning a rea sonable return for the investment, is pre sumptively constitutional. Its operation, therefore, is not a matter to be suspended for light reasons. Indeed, I have no hesi tation in saying that in many such cases an appeal to the discretion of a judge that injunction issue could well be denied until after trial. The abuses lying at the foundation of the earnest but sometimes reckless groping for remedies, must be checked. And if it were necessary, in order to promote this result, to pass through these processes, many of which will prove destructive of the rights and interests of a multitude of innocent and honest persons — still it would be well. For the property, the ser
vices and even the life of a citizen should be cheerfully sacrificed on the altar of the country's necessities. So much of it though is unnecessary — aye, worse than that, so much of it is deliberately mischievous, prompted by the same spirit that cries out, "Away with law and its restraints! Lynch him! Lynch him!" that every patriotic student of the times, while hoping for the best, fears that the consequences will be disastrous unless we again take up and press forward in all earnestness the shibboleth of the Fathers, "A Government of Laws, not of Men." When we do this, we shall find a faithful adherence to the constitutional plan of the Fathers, to-day as nearly ideal as it seemed to them. We shall love the common law as we have inherited and developed it in this country, because as a body of law it approaches more nearly to the ideal, in that its standard of justice is furnished by the people themselves. Hence, the bet ter and higher the civilization, the more nearly does the common law approach the ideal. And we shall give more attention to statute making. We shall have less of it, but that which we do have will be of better quality. It will not attempt to cover the common law field. It will supplement the common law, substituting a new rule for the old, occasionally, and providing reasonable regulations for its citizens and its corporate creations. What method will be adopted by which the necessity and efficacy of a proposed statute shall be determined before its passage, cannot be safely predicted. But that it would be wise to have it first passed upon after argu ment by a tribunal the equal of the best appellate courts in this country, seems to me very clear. Then would our statute law be developed with wisdom and caution, instead of being ground out from a legis lative hopper at the rate of five hundred laws a month, as has been done in more than one state this year.
