Omaha daily bee., 1906-05-23
RATE CASE VICTORY
Government Scores BIC Point in Hearing
at Kansas City,
utptcRtpr,o,
JRISOlCTIoN OVER EXPORT RATES
udge MCPHERSON Holds that They Must
Be Published Like Other Tariffs,
RAILWAY OFFICIALS MUST STAND TRIAL
Demuuers Filed by individuals and oorpo-
rations Are 0veruled by the Court.
TEXT OF THE COURTS OPINION
shipments from Inland Points Ar.
Interstate Commerce UntiI
Transferred to ships
at seaboard.

at seaboard.
KANSAS CITY. May 22.-The demurrer
VI 'he Burlington railway denying the
jurisdiction Of the government in export
freight rates was overruled in the United
states court here today by Judge Smith
Mcpherson Of Red OAK. Ia The decIsior
Is OF great Importance to many railroads
ana shipping interests and of particular
weight in the present instance because Il
destroys the contention Of the railroads
that export rates need not be made public
IL means. too, that the Burlington ana
other railroads and other corporations and
persons indicted here last December must
go to trial for granting rebates.
The trial of the Burlington was set for
May 81 49,
Exports to Canada or Mexico, as ..ad-
Jacent foreign countries" are not involved
IN the questions at issue 1T is urged "
Judge Mcpherson says. that IL ia NOT
within the power of congress to burden or
control commerce destined to points be-
yohd the seas, even though that commerce
originates at an inland point, the argument
being that seaport cities can have no law
tul rights which can be denied to cities of
the interior"
1t Is the opinion that congress has tho
power to so control and leglsate Atten-
ton was drawn to the report OF the Inter-
state Commerce commission December IA.
1905, in which it was said that II was a
mooted question whether the present act
requires carriers to file and maintain tariffs
under which they transport exports and
imports, but the commission had a number
OF times decided that the statutes covered
this point
The same section" the decision saws
defines the kind of commerce covered nv
the act and includes that from the United
States to n foreign country The fact that
$5OOO00oOO worth OF exports are shipped
from the United States" the decision con-
tinues, us powerful argument in favor
OF the proposition that they should not be
hampered with rate tariffs difficult or I'M
possible to observe because ocean rates
vary from day to day; but is this an ar
gument that can persuade the courts upon
the question OF what construction shall be
given statute If such statute is a valid
one2"
The statute, Judge Mcpherson says, for
bids lowering the rates except on a three
days notice. and raising them except on
ten days notice. ut is clear" he con-
tinues' that carriers by railways and
water inland. when acting under a COM
mon agreement are covered by the statutes
an adjacent foreign country And as TO
interstate commerce, It is included Be
cause these are specifically enumerated, IL
Is contended that all others are excluded
Conceding the force of this elementary and
recognized rule of construction there in
my opinion, is the error of the entire ar
gument of defendants counsel Congress
did not enumerate ocean commerce because
II would have been frivolous to do So"
! TuAg
given to the statutes only by enforcing II
on shipments to New York and then trans
ferring the merchandise to vessels when, of
| course, 1t passes from the Jurisdiction.
And II seems to me-, he says in con-
! clusion, that when this is done II can be
under an established rate, proclaimed by q
published and posted tariff rate"
Demurrer IL OverruIed,
The government announced that il was
ready for trial in three OF the rebate cases
The cases called were those Of George L.
Thomas. a freight broker Of New York
City, and his chief clerk, l.. b. TaKRart
under indictment for alleged conspiracy IN
securing rebates for shippers, and that
against George II. Crosby assistant freight
traffic manager OF the Burlington railway,
charged with conspiracy In giving rebates
These men were indicted in December
last with other railway and packing house
officials. whose trials have been set for
a later date. II. b. Duncan. a special agent
, Of the Department OF Justice, arrived here
yesterday to assist in prosecuting the cases
and will aid A. s. Van Valkenbu1gh. United
States district attorney, and Leslie Lyons
assistant district attorney. The govern
ment has forty witnesses among whom IA
J. A. Roberts, expert on rates, In the
! employ Of the Interstate Commerce. COM
mission.
: Judge Smith Mcpherson Of Iowa ait
Z ting In place OF Judge John f. Philips
overruled the demurrer or the Burlington
railway to indictments against oficials
of that company, and they must now go
4 to trial. The defendants, in a demurrer
, filed several weeks ago, contended that
congress was without power TO enact leg
islation regulating export rates In the
- giving OF alleged rebates in which the
J Burlington was charged with having viO-
lated the Interstate commerce, act
Reasoning of the Court.
T Judge Mcpherson said in denying the
: demurrer:
"The import case G62 L. S. 1870 was
not Of or concerning the ocean rates from
, New Orleans 10 San Francisco by rail-
and, applying the holding OF that case TO
! the AZ bar, why should the statute
not cover exports from Kansas city to
4 New York city, even though the purpose
' Is evidenced by contract by a single AMI
true bfl Of lading, and the purpose Is
20 at once place the product on an ocean
vessel destined 70 an European country
He continued: Tt is apparent 10 many
, and the commission recognizes that by
many II is believed that TO bring all
b | export shipments under this statute will
q | work injury TO the Pacific coast and to
the south IN exports Of cotton, and that
n the same 10 true as TO the grain grow
& ing and cattle raising industry Of the
" west II a be said that the right OF
g contract therefore be denied, the answer
. Is that no one provision Of the eonstltu-
r. tion must he subordnated 10 another.
r. and full force and effect can be given 90
both by enforcing ths statute on ship
r ments TO New York and then transferring
q tha merchandise 10 the vessels when, Of
n course. II passes from under the statute
And It seems 70 me that Mhsn this u