The San Francisco call., 1905-06-22

which such transportation was interstate COM
nleree. This wss done by a secret arrange
ment between the two companies. under which
the coal was apparently billed at the pub
nshed rate CT freight, although in fact the
price OF the coal included. The railroad
company collected the amount shown by the
billings and paid over part of II to the fuel
company as the price Of the COAL making
The real charge for transportation less than
the published rate by just that amount. At
the same time the rates given and charged
other shippers were the published tariff rates
without any reduction. This plan and the
way it was carried out were plainly 10 deceive
the Government and the public and TO enable
the fuel company 10 gain monopoly Of the
coal supply at the points involved by giving
them strong advantage competitors
in the actual cost OF transportation. The motive
Ior mus faNorlng the fuel company does not
sppear in the evidence thus far taken, but the
TACT is clear.
The letter recites that only one of the
chief officers Of either company had been
called as g witness, and that no, immu-
nifty from prosecution could be claimed
by any Of the other officers of either COM
pany. No papers had been submitted by
the fuel company, and consequently no
immunity could be claimed for ii. Ger
tain papers had been submitted by the
railroad company, but only such as are
by law made public. consequently no i'm
munity claim would stand thereby. Har
mon and Judson proceeded to argue that
the railroad company and all its principal
officers, perhaps including some subordi-
nate officers and agents, be arraigned for
contempt of court for making and carry
ing out the agreement referred to.
NO DOUBT OF VIOLATION.
In replying TO this letter on, March s,
Attorney General Moody expressed sat
isfactiOn with the progress made in the
investigation, and concluded with the
statement that upon its completion he
would confer with the counsel regarding
the action to be taken. Three days later
the special counsel, replying 10 the letter
OF the Attorney General, said:
We both understood our report to recon-
mend proceedings in contempt in the suit OF
the United states against the Atchison, To-
peka and Santa Fe Railroad Company az KAN
sas City without waiting the result OF future
Investigations with reference TO other action
against IL or the Colorado Fuel and Iron Com
pany, its officers and agents. II. however, we
understand from your letter you think IL best
not TO take these proceedings in contempt until
we shall have reported on the aovisahility
OF such further proceedings, shall. OF course
make our Investigations and report as early
as We
The letter concluded with a suggestion
that an order be issued for the taking Of
further testimony before an examiner In
Kansas City On March 20 the Attorney
General again was addressed by Messrs.
Harmon and Judson, who said:
We come to say that we have made an in
formal Investigation which confirms our pre-
vlous reports. We can go no further without
the use OF process 10 Secure formal evidence
and other proof and therefore again recon-
mend contempt proceedings and the takins
OF testimony before the committee appointed
Tor the purpose in the case pending in the
United States Circuit Court at Kansas City
We have doubt that the laws have been
violated by the traffic officers Of the Atchison,
Topeka and Santa Fe Railroad Company and
those OF the coloreda Fuel and Iron Company.
The former have by the same acts violated the
required to punish them for contempt of court
and also criminally. If il shall be thought
best 70 90 that toe can be had only by
judicial process. This is ready to our hands
in the above named case The proof elected
before the master viii also be available for
criminal proceedings against the Colorado Fuel
ana Iron Company and its officers and agents
As we have said, We can go no further and
need 20 no further with informal investiga.
tions. We are confident that the claims are
have stated them and II only remains
u put the proof in legal form.
final report the recommendation for
which are asked and await your further
Instructions
SPECIAL COUNSEL INsIsTENT.
The order 10 take further testimony.
requested in the letter TO the special
counsel on March II. was issued by the
Attorney General in a letter dated March
q. which concluded with the statement
that ne preferred to hear all the recon-
naendations of the special counsel before
considering the question OF the proper ac-
tion 10 be taken against the Atchison,
on March I in a letter to the special
counsel. the Attorney General said:
Before proceedings for contempt or criminal
proceedings against the railroad and fuel COM
panies or their officers or agents are begun /
desire that all the material facts should be
before the department and that the depart
ment should have the benefit Of your advice
upon them.
The next letter of the series was ad-
dressed to the Attorney General by Har-
mon and Judson, and referred to a con-
ference which had been held in Wash
ington the week preceding its date, April
IL 1t reviewed their recommendation of
March IL, that further testimony be taken
and added that this testimony was de-
sirable, not so much with view of pro-
curing proof of the violation OF the in
junction as q basis for contempt pro-
ceedings against the railroad company
and it's officers, with a view of procuring
detailed proof of unlawful shipments, so
as to have a proper basis of proceeding
under the criminal provisions of the
Elkins act against the Colorado Fuel and
Iron Company and its officers.
The letter then argued that testimony
taken before a master would be limited
as to the contempt phase of the case
unless contempt charges were first fled
and an order to show cause were issued
against the railroad company and its
officers. The distinction was made that
be necessary TO produce proof that the
injunction had been violated, while in a
criminal prosecution detailed proof of
special shipments would have to be
shown.
In a letter dated May 1s. the Attorney
General disapproved Of contempt proceed.
ings as suggested by the special counsel.
The letter follows:
CONSIDERATION FOR MORTON.
Gentlemen: have considered with the Mt
most care your letter OF May IL. II has been
submitted 70 the President and considered by
him ! think / ought to say to you that in
thus transmitting your letter to the President
] said:
II concur IN much that is said in this let
ter. I have not. however. as yet been able
10 overcome nay repugnance to proceeding in
dfvidually against the officers of the railroad
company who are In contempt OF the Injunction
without some evidence with respect 20 every
individual proceeded against that he had some
cUlpsbie connection with the contempt of
court
In passing upon your recommendation /
have not been Cnmindful Of the great weight
which Is added 20 them by your personal and
professional standing. Nor have ! forgotten
that you were invited to exercise the broedest
discretion TO persons as well to cor
pors tons IN dealing with those committed 10
you by this department Nevertheless. ! can
not escape my responsibility by substituting