The San Francisco call., 1896-01-16
Judge McKenna's Ruling in the
Railroad Commission
Case.
IT HITS HERRIN VERY HARD.
The Congressional Committees Report
Against the Central Pacific
Is Admitted.

l.
Railroad Company, he has never made SO
bad a mistake as he did nearly two weeks
ago, when he, to the exclusion of his assist
ants, assumed charge of the prosecution
In the injunction case now being heard be-
fore Judge McKenna, in which the corpo-
ration seeks to prevent the Railroad Com
missioners from enforcing an per cent
reduction on wheat freight rates.
With him as counsel Mr.. Herrin has
such eminent attorneys as Messrs. CARRIER
and Pillsbury, flanked by others who are
the peers of the "leading" counsel; but up
to date these gentlemen have not been
heard in court. At all times Mr.. Herrin
has conducted the case, and in his exuber-
ance the weight of his knowledge and
facile verbosity has overrun to the ex-
treme qualification of United States Dis
trict Attorney Foote. On one occasion
especially; when the Governments repre-
sentative awakened suddenly from gentle
doze, into which Mr.. Herrin's musical
voice had lulled him, and was 1oundering
about for cue to answer Judge Nc
Kenna's interrogatory as to what attitude
the Government took in the matter, Mr..
Herrin came boldly and amicably to the
rescue.
1t was on the second days hearing of
the case when the attidaVits of II. NJ. La
Rue of the Railroad Commission were pre-
sented and read accusing the railroad of
Initiating its Indebtedness, and of using
large sums of money to corrupt legislation
as against the benefit Of the Government
and public.
These allegations in the affidavits were
based upon the Congressional committees
report in regards to the Pacific and other
aided roads.
In behalf of the railroad, Mr.. Herrin had
an objection to make on the ground that
the report was not a document of record,
and that, at best, the allegations were
made on information and belief.
Judge Mckenna sustained the objection
at that time so far Is the railroad was con-
cerned, and turned to Mr. Foote to listen
to what he had to say for the Government.
At that particular moment Mr.. Foote
was dreaming of something else, but his
friend, Mr.. HerriD, put in the necessary
objection in his behalf, which called forth
the inquiry from w. w. Foote, the brother
Of the District Attorney, who is one of
counsel for the Railroad Commission, as
to Whom is Mr.. Herrin representing, the
railroad or the Governments"
This is all to show, however, with what
firm grip Mr.. Herrin had seized the legal
reins when he entered the case, and from
the very start he had, apparently, every
reason to congratulate himself on his posi-
ton.
That the gentleman did not break out
into broad grin during the first few
days OF the hearing gives corroboTation to
what Is said of him-that he has never
known what it Is to smile. In fact, it is
accredited to his immCbile face when
9. P. Huntington cracked one of his
pet jokes and every ybody else but Her
rim roared vociferously that he was re-
tanned at a princely salary as attorney-in-
chief for the corporation.
While the legal controversy was going
on before Judge McKenna and he was
having the top hand, his argument was
mainly to the effect that the Congressional
committees report contained mere state
ments made by c. p Huntington, Senator
Stanford and other individuals connected
with the railroad, but that their idle
vaporings could hardly be accepted as
being expressions emanating from the cor
poration, hence such testimony could not
be admitted, and that Mr.. La Rues affida-
Wits must periorce be dropped as well.
Whether these utterances were the sug-
gestions of Messrs. CARRIER and Pillsbury is
not known, but whenever they were being
made these gentlemen showed wonder
ful liking for a walk over to the ice-cold
water urn or for a walk in the lobby of the
courtroom.
However, Mr.. Heryins victory was OF
short duration. 1t came to a termination
yesterday morning when Judge McKenna,
who had reconsidered his first ruling,
shutting out the Congressional commit
tees report and taken it under adyisement,
made his ruling.
The court read at great length the testi-
mony taken by the commission and espe-
cially that of Leland Stanford to the effect
that the Congressional investigation could
not have proceeded from the nature of
things without the consent of the railroad
He and his Confreres, however, expressed
a willingness to answer every one of the
interrogations.
Judge Mckenna deducted from this that
the facts given were accurate and true, as
they had been given without compulsion
He ruled that the testimony was admissible,
but that the report of the commission and
the Pre- sident's message were not admis-
sible, IN that they were simply conclu-
Slons from the evidence.
The Ra Lue affidayitS were likewise ad-
mitted, but the court would not say then
whether they were relevant. Their admis-
Sibility was decided so far as the obiec-
ton raised was concerned.
Attorney-General Fitzgerald opened the
afternoon session by stating that he saw
no other course in reading the testimony
of the witnesses before the Congressional
committee than to read il in its entirety.
as no portion of such testimony could DOS
sibly be eliminated. The court acquiesced
to this and the reading OF CollisP. Hunting
tons testimony as given in answer TO the
questioning of Commissioner Anderson
was had.
The Acknowledgement picked up one of
the twenty-six volumes which bind the
mass of testimony. He
weighed the tome, shook his head, eoughed
and pleaded Ill health.
"Your Honor, l will be obliged to ask
that some one besides myself read this
am not feeling we'll to-day. Perhaps ex-
Judge Hayne would be the best to read
this.
But the ex-Judge did not feel well him
self. He had been keeping a weather eve
on the ponderous document, and he, too.
felt unequal TO the task which its reading
involved.
At this juncture eX-Judge ]. C. DAILY of
counsel for the defense came to the rescue
lie had TO pay the penalty of being big, an
elegant reader, and, above all, healthy.
Huntington's testimony, as we'll as that !
OF score of others yet TO be read and also |
obtained by the Congressional committee, !
is being introduced for the purpose OF |
showing the nwarrantable and excessive !
expense incurred in building the South
ern and Central Pacific roads.
As Attorney-General Fitzgerald has.put |
IT. 'Ihp 1T TnIfa6 al oil /, 81