The sun., 1906-12-05


little public understanding OF their tmpor-
lance, while the interested parties are keenly
alive 10 the desirability OF defeating them.
The importance OF enacting into law the
particular bill In question Is further increased
by the fact that the Government has now
definitely begun policy Of resortlng to the
criminal law in those trust and interstate
commerce cases where such a oours offers
reasonable chance Of success. At first, az
was proper, every effort was made TO en-
force these laws by civil proceedings. but
Il has become Increasingly evident that the
action OF the Government in finally deciding.
In certain cases. to undertake criminal pro-
ceedings was justifable; and though there
have been some conspicuous failures In these
cases. We have had many successes, which
have undoubtedly had a deterrent eject
upon evil-doers, whether the penalty IN
ficted was in the shape Of fine or imprison-
already been inflicted by the courts. OF
course, where the Judge can see his way TO
infiict the penalty OF Imprisonment the
deterrcnt effect Of the punishment ON other
Offenders Is increased, but sufficiently
heavy fines accomplish much. Judge Holt,
Of the New York District Court, In recent
decision admirably stated the need for
treating with just severity offenders or this
kind. His opinion runs in part as follows:
The 0overnments evidence to establish ;aloi.a
and undisputed. The case was q fagra MT
one. The transactions which took place
under this illegal contract were very large;
the amounts OF rebates returned were con-
siderable and the amount OF the rebate it,
self was large, amounting to more than one
fifth OF the entire tariff charge for the trans
portation Of merchandise from this city
to Detroit. Il is not too much to say. in
my opinion, that II this business was carried
on for considerable time on that basis-that
is, II this discrimination in favor OF this par
ticular shipper was made with an IS instead
OF - cent rate and the tariff rate was
maintained as against their oompettors-
the result night be and not improbably
would be that their competitors would DO
driven out Of business. This crime is one
which In its nature 10 deliberate and pre-
meditated. think over fortnight elapsed
between the date OF Palmer's letter request
ing the reduced rate and the answer OF the
railroad company deciding to grant II,
and then for months afterward this busi-
ness was carried on and these claims for
rebates submitted month after month
and checks In paymen OF them drawn
month after month. Such a violation OF
the law, in my opinion, in its essential ma
ture, 10 a very much more heinous act than
the ordinary common. vulgar crimes which
come before criminal courts constantly
for pun ishment and which arise from
sudden passion or temptation. This crime
in this case was committed by men OF edu-
cation and Of large business experience.
whose standing in the community, was
such that they might have been expected
upon the maintenance Of which alone in
this country the security OF their property
depends. Il was committed on tehalf of
a great railroad corporation. which, like
other railroad corporations, has received
gratuitously from the State large and
venience and it's own, which performs
quasi public functions and which Ia charged
with the highest obligation in the trans
action OF its business to treat the citizens
..NA a.
it's business with unjust determinations
between different citizens or different
CLASSES Of citizens. This crime IN it's nature
ID one usually done with secrecy, and proof
Of which It Is very dihcult TO OBTAIN;
The interstate commerce act was passed
in 1887, nearly twenty years ago. Ever
since that time complaints of the
granting Of rebates by railroads have been
common, urgent and insistent, and although
the Congress has repeatedly passed legisIa-
ton epdeavoring to put a stop to this evil.
the diffioultv Of obtaining proof upon which
to bring prosecution in these cases is so
great that this Is the first case that has ever
been brought in this court. and, as am
brought in Philadelphia are the only cases
that have ever been brought In the Eastern
rart Of this country. In fact but few cases
Of this kind have ever been brought In
this country, East OF West. Now, under
these circumstances, i am forced TO the
conclusion, In case in which the rroof is
80 clear and the facts are so fragrant, IL is
the duty Of the court to FIX q penalty which
shall In some degree be commensurate with
the gravity Of the offence. As between
the two defendants, In my or inion, the
principal penalty should be imposed on the
corporation. The traffic manager In this case,
presumably, acted without any advantage
to himself and without any interest In the
transaction, either by the direct authority
or in accordance With what he understood
to be the policy or the wishes Of his enrloyer.
@The sentence OF this court In this case
is that the defendant Pomeroy, for each
OF the six offences upon which he has been
convicted, be fined the sum OF 81 .OOO making
six fines, amounting in all to the sum Of
% 600; and the defendant the New York
Central Il Hudson River Railroad Company,
for each Of the six crimes of which it has
been convicted, be Hned the sum Of $4,000,
making six fines, amounting in the aggre-
gate to the sum OF slOs, 600, and Judgment
to that effect will be entered in this case
SETTING ASIDE OF JUDGMENTS AND GRANT
mo OF NEW TRIALS.
In connection with this matter I would
like to call attention to the very unsatis-
factory state OF our criminal law resulting
in large part from the habit Of setting asi6e
the Judgments OF inferior courts on techni-
calities absolutely unconnected with the
merits OF the case, and where there Ia no
attempt TO show that there has been any
failure OF substantial justice IL would
be well to enact law providing something
TO the effect that:
No Judgment shall be set aside or new
trial granted In any cause, civil or criminal,
on the ground OF misdirection OF the jury
or the improper admission or rejection OF
evidence, or for error as to any matter OF
pleading or procedure, unless, In the orinion
OF the court to which the application 10
made, after an examination OF the entire
cause, IL shall affirmatively appear that the
error complained Of has resulted In q mis-
carriage Of justice.
NJUNCTIoNs.
In my last message ] suggested the en-
aotment OF a Law in connection with the
issuance Of injunctions, attention having
been sharply drawn to the matter by the
demand that the right Of applying injunc-
tons in labor cases should be wholly abol-
ished. II is at least doubtful whether a
law abolishinx altogether the use OF in
functions In such cases would stand the
test OF the courts; in which case, OF course,
the legislation would be ineffective. More
over, believe Il would be wrong altogether
10 prohibit the use OF injunctions. II is
criminal to permit sympathy for criminals
to weaken our hands In upholding the law,
and II men seek to destroy life or properly
hw mob violence there shotild be no impair