The Birmingham age-herald., 1909-04-07

court of Kansas, observed: An injunction in limine is not a matter of strict right. It may sometimes be properly refused
 upon tn esame facts which would entitle the party of right to an injunction on final hearing" Akin vs. Davis IA Kas. IT, 120, see also by the same judge, Con- ley vs. Fleming, 14 Kas 29s.
 It is true that in the event the conten- ton of the complainants is finally sus- tained after practical test of tse acts, this result would show that they had un- justly suffered loss, but that only proves that laws regulating rates, like laws in- posing taxes, cannot be so made and en- forced as to always insure perfect equity
 On the other hand, if the operation of the laws is enjoined and they afterward prove valid, some injustice has been done those entitled to the immediate benefit of the laws. I.l.H
 Secured By Bonds.
 It is argued that the injunction should
 be issued because the rights of the de- fendants and all interested are secure by bonds. It is true that the courts have held that the fact that the defendants
 rights may be secured by bond is some times sound reason, In cases where the final result is doubtful, for exercising judicial discretion in favor of granting the preliminary injunction. But that rule is not always controlling, and clearly it
 should not be applied in cases where the
 bond does not afford adequate protection.
 Here the bonds given are intended to se-
 cure innumerable passengers and shippers
 or consignees. It is not at all prob
 able that the claims of one-tenth of them,
 on breach of bonds, would ever be pre-
 scented, or, if presented. would be paid,
 and to enforce payment In the courts, un-
 less those injured combined in their ef-
 forts, would cost more than the claim is
 worth Those familiar with the lift case know that the bond proved intellectual as
 complete indemnity in that case, although the parties sought to be protected were large shippers of lumber. lift, ct al. vs. Southern Railway company. ct al, 123 Fed. 7S9; 10 l. c. C.. Rep. 54S; 13S Fed. 1021; 206 U. s. 42S; lift, ct al. vs. Southern Railway company, ct al, 159 Fed. 555. Where the injunction is granted the bonds should, of course, be required, but the court cannot safely exercise it's discretion upon the theory that the bond in cases like these gives complete indemnity.
 It is urged by the compliments that the temporary injunction was properly issued because required to protect their property rights. That contention assumes a disputed assertion to be true. If no one else was concerned, the courts might yield to that view without much hesta- tion. But the passengers and shippers, if, strictly speaking, they have no property interest involved, have a pecuniary in- terest in the enforcement of the rate laws So there are rights on both sides de- serving careful thought. And the public has an interest in the enforcement of every law until it is repealed or judicial 1y annuled. The courts should of course, with strong hand protect property from all unlawful invasion, but they should not be so engrossed by that thought and duty as to forget the rights of others, 1 whether property rights or not. We should be slow to hold that any man or corporation was entitled to the imme- diate enforcement of an alleged right in consistent with the rights of others
 Dispatch of Litigation.
 The litigation is likely to end sooner if no injunction is in force Its dispatch is greatly dependent upon the conduct of the case by the compliments. They would l not be inclined to press the case for speedy decision when they have once se- cured preliminary injunction. As long as 1t stands, it Is as good as any other, | and experience shows that it often has practically the effect of a permanent in- junction. Knowledge of this fact was probably one of the causes for the en- actment of the statute allowing appeals from these interlocutory orders.: 34 Stat, 116 In these eases the preliminary injunc- tions have been in force for two years If no injunction had been granted it is
 probable that a final decree of the circuit court would have been reached in one fourth of that time.
 There is no statute allowing an appeal from the circuit court to the supreme court from an interlocutory order grant ing an injunction. We have, therefore as to the cases Sat bar, no controlling authority directly in point. Two recent cases, however, indicate the views of that court on the questions involved here.
 In Wilcox vs. Consolidated Gas com pany of New York-U. S.-(decided Janu- ary 1, 1909), the bill was filed to enjoin the enforcement of certain acts of the New York legislature alleged to be uncon- constitutional because the rates fixed by the acts (prices to be charged for gas) were conf1scatory. The court, in refusing to grant the relief prayed for, made ob- servations that throw light on the meas ure of proof required in such cases: We cannot say there is no fair or just doubt about the truth of the allegation that the rates are insufficient" And the court suggested that there may be other cases where the evidence to the probable re- suit of tn rates in controversy would show that they were so nearly adeauate that nothing but a practical test could satisfy the doubt as to their sufficiency." And 1t was further said that a reduction in rates will not always reduce the net earnings, but on the contrary may in- crease them' The court dismissed the bill in that case. repeating the rule as to the measure Of proof required, holding that the complainant had not shown be yond any just or fair doubt that the acts of the legislature of the state of New York are in fact conf1scatory." In the order of reversal dismissing the bill with out prejudice, the court said: Tt may possibly be, however, that practical ex- perience of the effect of the acts by actual operation under them might prevent the complainant from obtaining fair return as already described, and in that event complainant ought to have the oppor- tunity of again presenting it's case to the court" The opinion in that case is very instructive as to the strict rule of evi- | dence applicable to such cases and the l importance the court places on a test by actual trial before coming to the con= 1 cluson that an act in question is confis- | catory It appears from the statement | of the case mad by MT. Justice Peckham. who delivered the opinion, that a preim- mary injunction was issued by the circuit l court, the cause referred to a master. who reported in favor of the complain ant, and the circuit court confirmed the | report. After such elaborate investiga- tion the supreme court indicated in it's | opinion the importance of a practical test | by an actual trial of the statute. It would clearly have been the better course in that case for the circuit court to have refused the preliminary injunction and let | the test be made at first
 Knoxville Decision.
 The case of the mayor and aldermen of the city of Knoxville vs. Knoxville Water company-U. S.-(decided January f. 19O5). | was brought by a bill to enjoin an ordi- nance fixing maximum rates to he charpad l