The sun. [volume] (New York [N.Y.]) 1833-1916, 1906-11-16
CENTRAL AGAIN FOUND GUILTY
JUDGE HOLT QUICKLY OtEH-
RULES CHOATE'S ARGUMENT.

ahbNDh ~ AaNshs' -
Is Not a Crime II the Agreement Was
Made Before-rO ne Heard Again.
The New York Central Railroad Com
pany was again found guilty of rebating
to the American Sugar Refining Company
In the United States Circuit Court, Criminal
Branch, yesterday. Judge Holt set next
Tuesday as the day on which he will hear
the argument OF the attorneys for the
railroad on the usual technical motion
for arrest of judgment. This motion will.
it is expected, be overruled and the fine
imposed. As there is but one count in
the indictment on which the road was
tried this time, the highest penalty which
can be imposed il $50, 900.
The interest in yesterdays session CEN
tired in the effort OF Joseph H. Choate to
have the indictment thrown out on the
I ground that as only the S2e 900 rebates
were paid over after the passage OF the
Elkins law, the agreement to rebate and
shipment Of sugars to Cleveland thereon
having been completed before the passage
of the law, the whole transaction could not
legally be treated az a violation OF the
Elkins law.
1t had been shown that Lowell VI. Palmer.
for the sugar trust. and +. L. Pomeroy, as
assistant traffic manager for the road. on
July "a, 1902, made a written agreement
to rebate six cents OF the schedule rate of
81 cents per hundred pounds on all the
trust sugars going over the road from
New York TO Cleveland.
On April o, 1903, after the shipments
had been made and after the passage Of
the Elkins act in February. Pomeroy paid
the $50 900 odd in rebates In a single draft
sent to Palmer in roundabout fashion. At
the close OF the session Judge Holt an
lawyers Mr.. Choate would be allowed
TO argue the applicability of the Elkins
law 10 this transaction on its behalf.
The room was crowded at the opening
OF court when Mr.. Choate rose 20 speak.
] At his right we're John Il Parsons and Alton
b.. Parker, who will try the first case to-day
which the Government has brought against
the trust. This is upon the complementary
indictment alleging the receiving by the sugar
company of the rebates which the rail
road gave. Mr.. Choate, il was understood,
thus argued the point for both corporations.
Austen O.. Fox and John d. Lindsav were
present for the railroad, and United States
District Attorney III l.. St1mson, his assist
ants Henry A. Wise and Felix Frankfurter.
and Agent John W. II. Grim on behalf Of
the Government.
Mr.. Choate made the general attack upon
the indictment that the essential feature
of the alleged crime, the agreement to
rebate and the shipment Of property there.
on, had taken place before the passage OF
the Elkins law made them unlawful. He
read the Elkins law: 1T shall be unlawful to
grant, receive, accept or give rebates on any
property which shall be transported" &c.
These are the words of the act and they
certainly give a prospective character to
the law. What was the intention Of Congress
in passing the law? To make il criminal
to nave related in the past? That il GER
tainly preposterous. To make IL criminal
to give or take rebates on property which
had been transported and the bargain made
J before the passage Of the act? Now, this
is the very point. II Congress had meant
that, it is onlv fair to suppose that they
would have said so. But instead Of saying
so they said specifically that the law only
was intended to cover shipments to be made
in the future. II says plainly: On property
which shall be transported This is merely
a question OF grammar. and no man OF sense,
| submit to your Honor, can construe the
phrase l mention as having any other than
a future Specification.
IL must say" continued Mr.. Choate,
that while we have the new spelling and all
sorts of other new tlings to-day / have
: yet to see the new speller or new grammar
J that can convince sensible men that shall
he e anything else than plain shall be-
And even in a day when men are attacked
in the public prints for giving to their clients
all the legal aid they can to protect them
III tAF-ll IlktI~ tlNtIt a " 10 OlltT con-
struction of the phrase for sensible men
but hat shall be- means shall be-"
After a lively debate between Judge Holt
OF one side and Mcssrs. Choate and Austen
q. Fox on the other. in which Mr.. Fox de-
Clared hat Judge Holt had admitted the
ambiguity of the Elkins law as relating
to the acts alleged in the indictment, thus
admitting that the railroad could not be
held under il. he Court said it would be
unnecessary for the United States Attorney
IN raVNIN tn MIR IhnnfR N = fhn N IN, .a~,-l
plain to him.
The law plainly states" said Judge Holt
that any corporation which shall grant
rebates shall be guilty OF a violation OF the
act. ! grant that the law says further
along ON property which shall be trans
ported, DC But that phrase 'shal be-
seems to me to be merely one of no future
Specification, but made necessary in the
sequence of lenses by the antecedent phrase
a corporation which shall grant rebates
| override the objection. Proceed with the
case
Judge Holt, however, gave Mr.. Choate
permission to speak again before him when
the case of the sugar trust cores up to-day
and tomorrow. IL was remarked that the
jury, although given permission by Judge
Holt TO leave the room while Mr.. Choate
ton.
Mr.. Fox in summing up on behalf of the
railroad admitted that the payments made
to Palmer were rebates. but said that they
had been paid by Pomeroy without any
authority from the railroad or any Of its
| officers: We admit that the payments
made were rebates. We admit that Pome-
roy granted rebates and paid them. But
we do urge that such Relating has not been
brought home to this corporation now on
trial.
Mr.. timson in summing up on behalf
Of the Government said that the case against
the road was complete in every particular.
IL il lust a case of thisc CORPORATION having
in the words OF a former chief Of police
been caught with the goods on and having
thrown up both hands"
The jury were out about two hours when
they came back for instructions. IL was