Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-03-11
CALLS 1T ABUSE OF POWER
THE ORDER MADE BY JUDGE
CLANCY IS NOT INTERFERED
WITH, HOWEVER.
FIGURE UP HOURS OF THE DAY.
And Decide That District Courts
Should Do Work Overtime on
Important Gases.
Special to Inter Mountain.

Speclal TO inter Mountain.
Helena. Mont. March II.
The supreme court to-day refused the
application of the Boston & Montana for
stay of the restraining order granted
by Judge Clancy to prevent its opera
tions on the COmancne mine on the petit
ton of Adolph WetzStein, but at the
same time administers severe rebuke
to Judge Clancy for not setting thu app
plication to make the injunction per-
manent, earlier than April ?.
In an opinion written by Justice Mil
burn the court sustains the contention
of Wetzstein that there is no appeal IRON
the restraining order on The ground hat
it is intended only as Il restraint on the
defendant until the proprety of granting
an injunction, temporary or perpetual
", can be determined. But the court
says:
Such order is limited in operation and
extends only to such reasonable time
as may be necessary - have a hearing
on an order to show cause why the
injunction should not issue. 1t is the
plain duty of the court to set the order
to show cause at a very early date and
upon the application Of the defendant to
shorten the time, to the cad hat. If the
straining order may De discharged. In
such case. an appeal irom the res.rair-
ing order Is not possible Or contemplate
| ed, for the reason that OF The hearing,
| or soon thereafter, the court in the dis.
charge OF Its duty, will gran: or refuse
the injunction, and in either eveat the
restraining order is dead. The law pre-
sumes that the judge will be i.ic and
just, and will not put off the haaril & Of
order to show cause until a day so dis.
tant that, by force Of MS own despotic
will, mere temporary cxpctlient, to~Wit:
the restraining order, granted cxparte
and without bond, perhaps Will bacome
an injunction.
This court does not deem it inn
proper to say that in reviewing this
case. 1t notices an abuse of the power
OF the court below in setting the order
to show cause over so long a period Of
time. In the exercise of its extraordi-
nary powers in cases such as the one
at bar, involving important interests
and mining operations, which may suf-
fer from interruption and delay, the
court should grant hearing a. as early
date as practicable. and it Is difficult
to believe that such order could not be
heard within a reasonable time-less
than SIX weeks. TO set an order to
snow cause why temporary Injunction
should not issue for the hearing on so
distant day, and granting a restraining
ORDER meanwhile in case like the one
before u.s. indicates a want of deliber.
ate consideration Of the defendants
rights. The days being twenty-four
hours long, certainly court which Is
ordinarily occupied in trial causes on
the regular calendar only five hours in
actual time per day can find few
hours IN which to grant a hearing on an
order to show cause why important
business concerns should not be sus.
pended pending a suit which may last
long time To add to the danger Of
SO long a postponement of the hearing.
we notice that the restraining order is
issued without bond. We are not to
be understood as saying that a bond
should or should not have been reuuir.
ed IN case the restraining order had
been set In operation for short time
only, but we do say that cases are exc
ceptional where it would not be advis.
able 70 require bond'
The opinion is signed by Chief Justice
Brantley and Associate Justice Mil.
burn but Associate Justice Pigott dis.
sents in the following words: Il am
or opinion that the restraining order Is
species of injunction order, and is an
order from which appeal lies by virtue
or section 1922, code of civil procedure.
as amended in 1899. / concur, however.
with the remarks of the majority of the
court touching the duty of district
courts in the matter of restraining and
injunction ORDERS"