The daily morning journal and courier. [volume] (New Haven, Conn.) 1894-1907, 1906-12-05

/ was fragrant one The transactions
| which took place under this illegal con-
tract were very large; the amounts of
rebates returned were considerab le
and the amount of the rebate itself was
large, amounting to more than one
fifth of the entire tariff charge for the
transportation of merchandise from
this city to Detroit 1t is not too much
to say, in my opinion, that if this bust
ness was carried on for a considerable
sine on that basis-that is, if this dis
i elimination in favor of this particular
shipper was made with an eighteen in
stead of a twenty three cent rate and
the tariff rate was maintained as
against their mpetitors-the result
might be and not improbably would be
that their competitors would be driven
4 out of business. This crime is one
which in its nature is deliberate and
/ premeditated. l think over a fortnight
elapsed between the date of Palmers
letter requesting the reduced rate and
the answer Of the railroad company de-
Gliding to grant it, and then for months
afterwards this business was carried
on and these claims for rebates submit~
ted month after month and checks in
\ payment of them drawn month after
/ month. Such a violation Of the law, in
my opinion, in its essential nature, is /,
| very much more heinous act than the
ordinary common, vulgar crimes which
arise from sudden passion or tempta-
ton This crime in this case was COM
mitted by men of education and Of
large experience, whose standing in the
community was such that they might
have been expected to sci an example
of obedience to law, upon the mainte-
nance of which alone in this country
the security of their property depends
1t was committed on behalf Of a great
railroad corporation, which, like other
railroad corporations, has received gra-
tuitously from the state large and val
liable privileges for the public's conven-
fence and its own, which performs
quasi public functions and which is
charged with the highest obligation in
the transaction of it's business with un-
just determinations between different
citizens or different classes of citizens.
This crime in its nature is one usual
ly done with secrecy, ana proof Of
which it is very difficult TO obtain. The
interstate commerce act was past in
1887, nearly twenty years ago, Ever
since that time complaints Of the
granting of rebates by railroads has
been common, urgent and insistent,
and altho the congress has repeatedly
stop to this evil, the difficulty Of OBJ
tanning proof upon which to bring pros
ecution in these cases is so great that
this is the first case that has ever been
z brought in this court, and, as l am in
formed, this case and one recently
brought in Philadelphia are the only
cases that have ever been brought In
the eastern part of this country. In
fact, but few cases of this kind have
ever been brought in this country, east
or west. Now under these circum-
stances I am forced to the conclusion
in a case in which the proof is so clear
and the facts are so fragrant it Is the
! duty of the court to fix a penalty which
shall in some degree be commensurate
! with the gravity of the offense. As be-
tween the two defendants, in my opin-
ion, the principal penalty should be i'm
posed on the corporation. The traffic
manager in this case, presumably, act
ed without any advantage to himself
and without any interest in the trans
action, either by the direct authority
or in accordance with what he under.
stood to be the policy or the wishes o.
his employer.
"The sentence Of this court in thi
| case is. that the defendant Pomeroy
for each of the six offenses upon which
+, he has been convicted, be fined the sun
! of 81, 900, making six fines, amounting
in all to the sum of $4,000; and the de
PENDANT, The New York Central anC
Hudson River Railroad Company, fo
each Of the six crimes of which it ha
been convicted, be fined the sum o
$4,000, making six fines amounting il
the aggregate to the sum of $l0S,O0O
and Judgment to that effect will be en-
tered in this case"
Setting Aside of Judgments and Grant
ing of New Trials.
In connection with this matter,
would like to call attention to the yer,
unsatisfactory state of our crimina
: law resulting in large part from tn
: habit of setting aside the judgments 0
e inferior courts on technicalities abso
e lutely unconnected with the merits o
E the case, and where there is no attemp
t to show that there has been any failur
' of substantial justice. 1t would be wei
: 80 enact a law providing something t
l the effect that:
= No judgment shall be set aside o
e new trial granted in any cause, civi
Y Or criminal on the ground of misdirec
f ton of the jury or the improper admis
5 sion or rejection of evidence, or for er
5 ror as to any matter Of pleading OF
? procedure unless, in the opinion of tn
: court to which the application is made
r after an examination of the entir,
f cause, it shall aff1rmatively appear tina
s the error complained of has resulted il
miscarriage of justice.
Iniunetions.
In my last message 1 suggested tn
2 enactment Of law in connection witt