Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1905-12-05

upon some constitutional or other tuhua-
mental ground, decision OF this Kind
on demurrer by lower court, as Il estab-
d fishes precedent. practically results in the
abrogation OF the statute upon which the
TscSm%snd che sGsGsm ,St . Of law
the United states as is now AFFORDED III
the District of Columbia by section 9S5 OF
the code.
- Miscondnct iR odice. ~.
Misconduct in Office was Always a grave
Oftense under the English common law.
As such II was brought to this country
and was embedded in the common law OF
Maryland and thence was transplanted to
the District OF Columbia. Various decisions
of the courts OF this district show that
there this crime Is federal ofense. al
though within the territory OF me states
there are no federal common-law crimes
After experience in pending cases, and
notably the cotton leak case, and alter
careful reflection. I am convinced that tho
federal statutory law should make this an
offense throughout the United states. Its
should be enlarged for purposes 81 pun
ishment Substantially and for purposes of
removal for trial in general between all the
districts of the United States. rhe scope
of the crime under tho common law should
| be reduced TO precise specification. 1t Is
true, rs a mere possibility, as the matter
stands at present tina; Irregularities and
| nhsbehaVior which are blalnaDle but
trihing. may be inclined to toe definition
| OF the onense; but the most serious ana
essential criminal matters which now es-
cape definition and punishment IN the
| criminal code are also included.
1t is entirely feasible to insure 10y the
! terms of the statute against tyranncal
| persecution on petty accounts, but the law
situations I'm the recent history of admins
! tration where dishonest ana conspiring DILL
GERS OF the government. taking advantage
/ OF loOpholeS and omissions In the law, have
] sklituiiy concerted, to the vital Jury OF
the public OF the government. schemes
! when are essentially fraudulent and cor
| rupt.
! L recommend. therefore. that a statute
should be enacted at this session OF the
congress which shall deal adequately with
! this subject, defining the ofIense providing
! for It's punishment, extending the prohibi-
, tons of the law throughout the United
States. and Including this offense In the
present laws concerning removal or In any
amendment of those laws which may be
/ enacted consequent upon the recommended
| lions relative to that subject which have
| made in this report. | shall have the
! honor to submit thereafter to congress an
outline or suggestion OF suitable bill for
| this purpose
SuPpressinE Discriminution Difficult.
! Several cases I'm which II is alleged there
| nave been violations of the EllSins act, have
! been prepared, placed In the hands of the
district attorneys In three different states
and Will soon be submitted to the grand
1urtes for their action.
! In all cases I'm which the evidence has
been furnished to the department of vio-
lations Of the Elkins act appropriate action
has been taken. 1t is impossible for the
department to proceed upon rumur or upon
any basis except evidence. The Depart
ment of Justice is not equipped with any
| force whose duties are to obtain evidence
OF violations of law, and relies to con-
| siderable extent upon the information OBJ
| tained by the Int rstate Commerce COM
mission. Rebates, determinations and de-
partures from published rates are secret
crimes, usually known only to the ship
pers concerned and the officials Of the
railroad and ordinarily can be proved oniy
by the confession of some one of the per-
sons implicated in the wrongdoing.
officials of railroads have in general
! terms assured me of their Willingness to
aid the department in every way in en-
forcing the provisions of the law against
rebates. determinations and departures
from published rates, but have declined TO
render the only assistance That would be
OF the slightest value namely, the fur
nishng of evidence proving the offense.
ITO every case OF this KIND there are two
guilty parties The department has been,
land is, wiling to accept the evidence
either Of ths shipper o. of tnS ra' TrS
prosecution which would result from the
use of tho evidence, and to proceed by
But for reasons which will be appreciated
by all, men have shrunk from betraytng
their confederates. The cases, therefore,
in which evidence hY =, beer or Will be OBJ
tanned are occasional and exceptional, and
unless we are content TO allow the evil OF
the discriminatory practice by common
the punishment OF a detected crime, some
remedy which reaches deeper than any law
The Interstate Commerce commission and
the Department of Justice, by the exercise
OF the utmost diligence, can discover and
pTohibit or punish only small percentage
of the discriminatory practices which ac'
tually exist II seems probable that the
direct payment of rebates In money has
largely diminished It is alleged to be
true, and the evidence before this depart
ment so far as II goes, tends to support
/, the allegation, that, though clothed and
disguised by various devices, the practice
OF giving one shipper preferential treat.
| ment over another In like situation, In
substance, still continues
... suEgesss New weapon.
II the power upon complaint, 10 fix 4
future maximum rate and put 1t into efteei
within a reasonable lime, subject to appea
to the courts, should be given to some
! administrative BODY created by congress,
weapon against discriminatory practices
much more potent than any now avail
COVE soVern MS Upon proof that lower
sSippers the body clothed with the power
determine that the rate which the rail.
| road could AFFORD TO give 20 the preferred
shipper y could afford to give 70 al snip,
could be predicted with certainty, tht
courts upon appeal would not reverse, foi
no better me ey rate thus MED Gould be fonnc
than In the action of the carrier itself
IL would be difficult for the carrier e
} ! maintain that n rate actually charsfd bS
IN was contiscatory or unjust
Illustrating by the case of the Pabsi
tsrevvinT company, Il might we'll be fodnc
that the railroads concerned In that case
} witch were able to transport the beer OF
the Pabst Brewing company In tile private
oars OF the transportation company at q
!. net nriee ~ per cent less than the published
rate could well afford to transport all beer
under like conditions al the same rate.
In place, then, of the long drawn out pro.
} ceedings by petition in equity, with all the
onnortunities for delays which such pro
ceedings AFFORD and of criminal prosecu.
tons hampered as they are by the con.
! stitutional right of all concerned I'm thi
: transaction TO be protected against self
DELAYS and no embarrassing constitutions
ouestIons would be available. Such u
remedy would not only be speedy, but ia
very existence would act as a powerful
restraint upon all discrimination between
shippers. The fear OF the carrier OF In
functions and criminal prosecutions woulC
be slight In comparison with the fear thai
whenever it was discovered that one ship
per had been given a lower rate than hii
fellows the same rate might be by law a
once extended to all.
Moreover, the Incentive 10 the shipper L
struggle for an unlawful advantage woulC
. be lessened II Il became apparent that TIN
p lower rate which he might secure would b
, / speedily extended to his competitors Fo
I II is the advantage over his competitors
. rather than the mere saving In freigh
n , money, for which he Is most eager Thu
: I the mere existence of the power TO H.
a future maximum rate with the stronl
v | probs bility that Il would be exercised q
: The manner / have indicated. would effec
. | tgxg.I,s dtarouraQe hOfh The simmer and IN