The Birmingham age-herald., 1906-12-05

1 determinations between different citizens 1 or different classes of citizens. This 1 crime in its nature is one usually done | with secrecy, and proof of which it is very difficult to obtain The interstate 1 commerce act was passed in 1887, nearly l twenty years ago. Ever since that time | complaints of the granting of rebates by 1 railroads has been common, urgent, and I insistent. and although the Congress has repeatedly passed legislation endeavoring l to put a stop to this evil, the difficulty | of obtaining proof upon which to bring l prosecution in these cases is so great l that this is the first case that has ever | been brought in this court, and, as I am informed, this case and one recently brought in Philadelphia are the only cases that have ever been brought in the | eastern part of this country. In fact, but few cases of this kind have ever been brought in this country, east or west. Now. under these circumstances. I am forced to the conclusion, in a case in which the proof is so clear and the facts are so fragrant, it is the duty of the court to fix a penalty which shall in some degree be commensurate with the gravity of the offense. As between the two defendants in my opinion, the prin- cpal penalty should be imposed on the corporation. The traffic manager in this case, presumably. acted without any ad- vantage to himself and without any inter est in the transaction, either by the dl- rect authority or in accordance with What he understood to be the policy or the wishes of his employer.
 "The sentence of this court in this case is. that the defendant Pomeroy, for each of the six offenses upon which he has been convicted be fined the sum of s1000 making six fines. amounting in all to the sum of $6000: and the defendant. the New York Central and Hudson River TafI fnr oh nf c crimes of which it has been convicted, be fined the sum of $1S.0O0 making six fines amounting in the aggregate to the sum of $1OS,O0o, and judgment to that ef- feet will be entered in this case"
 Setting Aside of Judgments and Grant
 ing of New Trials.
 In connection with this matter. I would like to call attention to the very unsat- isfactory state of our criminal law re- sulting in large part from the habit of setting aside the judgments of inferior courts on technicalities absolutely uncon- nected with the merits of the case. and where there is no attempt to show that there has been any failure of substantial justice. It would be well to enact a law providing something to the effect that:
 No judgmnt shall be set aside or new trail granted in any cause, civil or crimi- nal on the ground of misdirection of the jury or the improper admission or reJec- tion of evidence, or for error as to any matter of pleading or procedure unless. in the opinion of the court to which the application is made, after an exam ination of the entire cause, it shall affirm atively appear that the error complained of has resulted in a miscarriage of jus tiee.
 Injunctions.
 In my last message l suggested the en-
 ffa,, h4a issuance of injunctions, attention having been sharply drawn to the matter by the demand that the right of applying i1l- functions in labor cases should be wholly abolished. It is at least doubtful whether a law abolishing altogether the use Of injunctions in such cases would stand the test of the courts; in which case ot course the Legislation would be inef- fective Moreover, l believe 1t would be wrong altogether to prohibit the use of injunctions. It is criminal to permit syn- pathy for criminals to weaken our hands in upholding the law; and if men seek to destroy life or property by mob Nio- lence there should be no impairment of the power of the courts to deal With them in the most summary and effective way possible But so far as possible the abuse of the power should be provided against by some such law as l advocated last year.
 In this matter of injunctions there is lodged in the hands of the judiciary necessary power which is nevertheless subject to the possibility of grave abuse. It is power that should be exercised with extreme care and should be sub ject to the jealous scrutiny of all men, and condemnation should be metcd out as much to the judge who fails to use 1t boldly when necessary as to the judge who uses it wantonly or oppressiveiy. Of course a judge strong enough to be fit for his office will enjoin any resort to violence or intimidation, especially by conspiracy, no matter what his opinion may be of the rights of the original quar- rel There must be no hesitation in deai- ing with disorder. But these must like wise be no such abuse of the injunctiya power as is implied in forbidding laoor- ing men to strive for their own better ment in peaceful and lawful ways: nor must the injunction be used merely to aid some big corporation in carrying out schemes for it's own aggrandizement. It must be remembered that preliminary injunction in a labor case, if granted without adequate proof (even when au- thority can be found to support the con clusions of law on which 1t is foundeD. may often settle the dispute between the parties: and therefore if improperly granted may do irreparable wrong. Yet there are many judges who assume matter-of- course granting of a prellmin- ary injunction to be the ordinary and proper judicial disposition of such cases; and there have undoubtedly been fragrant wrongs committed by judges in connec- tion with labor disputes even within he last few years, although I think much less often than in former years. Such judges by their unwise action immensely strengthen the hands of those who are striving entirely to do away with the power of injunction; and therefore ruch careless use of the injunctive process tends to threaten it's very existence, for if the American people ever bcome con- yinced that this process Is habituelly abused, whether in matters affecting labor or in matters affecting corporations, it will be well-nigh impossible to prevent it's abolition.
 It may be the highest duty of a juege at any given moment to disregard, not merely the wishes of individuals of great political or financial power. but tine over whelming tide of public sentiment; and sentiment when it is wrong, who brushes aside the plea of any special interest when the pleading is not founded on righteousness, performs the highest ser vice to the country. Such a judge IS de- serving of al honor: and all honor can not be paid to this wise and fearless iudge if we permit the growth of an ab- surd convention which would forbid any criticism of the judge of another type, who shows himself timid In the presence of arrogant disorder, or who on insuf- ficient grounds grants an injunction that daoe iujustfce. who in NiS cd-