Omaha daily bee., 1908-07-23
OIL FINE IS TOO HIGH
Circuit Court of Appeals Orders
Retrial Of Famous Case.
ERRORS FOUND IN RECORD
Exclusion of Certain Testimony Held
to Be Vital.
HOLD INTENT IS NOT SHOWN
Maximum Penalty in Any Event Not
Over $72o,00o
LID INTENT IS NOT SHOWN
WILL MOVE FOR REHEARING
Government VIII File Application
within Thirty DRys-Decision by
Grosscup and is ConCurred I'm
by Baker and Seaman.

CHICAGO. July 2-The United states
court Of appeals reversed and remanded
for retrial the case OF the government
against the Standard Oil company of In
diana in which Judge Lands In the dis
trict court had imposed a fine of S9'-
100000.
The government has thirty days within
which to file a petition for a rohearing, and
It was announced this afternoon that 1t
will be filed within the allotted period.
| In his opinion, which was concurred In
by Judges Seaman and Baker, dealing with
the intent" feature of the case-a vital
point--Judge Grosscup says:
Intent Not shown.
1--WE should take up these subjects in the
order stated the first being whether a ship
per can without error, be convicted of ac-
| cepting a concession from the lawful pub
lished rate, even though 1t is not shown
| as bearing on the matter Of intent that the
shipper at the time OF accepting such conces-
sion know what the lawful published rate
was-a view of the law that is embodied In
the charge and carried out in the ruling
excluding certain proffered testimony, in
cludlng that of one Edward Bogardus,
who, being in absolute charge of traffic
affairs of plaintiff in error, offered to
testify that during that period ne did not
know anything about an 1S-cent rate over
the Chicago g. Alton raiload; that his at
tention had never been called to any such
rate by any person or by the examina-
ton of any document, and that 1t was his
understanding and belief on what he was
told by one Holland, tariff clerk for the
Alton railroad, that the rate over the
Alton road was cents, and that SUCH
rate had been filed with the Interstate
Commerce commission"
Penalty Is Too Great.
Judge Grosscups opinion leaves little OF
the contention that each carload at the
Scent rate constituted a separate offense.
Even the shipments, of which there were
I about 500, could not be considered under
the ruling of the court The fine should have
been base settlements between railroad
and the oil company. OF these there We're
y lust thirty-six. The maximum fine on this
n the oil company. or these there were Just
II thirty-six The maximum fine on this
l. basis would amount to but S2O,OOO, ana the
: minimum 1000, the latter figures being
It considerably less than the S223OO0, which
It the Standard is alleged to have received
e as rebates on the shipments in question.
e In the event rehearing is denied The
= government may go to trial on the original
e Indictment containing 1,462 counts, an ac-
q ton which Mr.. Sims would be ready to
l. take within two weeks, or upon any one OF
'e seven other indictments containing 4,42i
II counts As a vast amount OF work has
J. been done on the case just decided, It is
- unlikely that an entirely new case VIII be
% instituted The record of the present case
- contains over 100000 words and is esti'
III mated to have cost the government 100000
- Another move which may be made by the
II federal authorities is to transfer the prose
- cution from this Jurisdiction, either to the
- Western New York district or the Eastern
! Tennessee district. In these two districts
the government investigation led to in
Is dictments containing about 1000 counts
against the Standard Oil company.
All Entitled to Trial.
The most striking portion of the decision
epitomizing the attitude OF the court was
- as follows:
Counsel for the government say In con-
% cluding their brief that the Elkins act was
% passed because the peace OF society and
-, the welfare OF the people demanded IT.
q that railroad inequality means business
~ ruin to all except those powerful enough
y, to make themselves the beneficiaries of the
as determinations means the wiping out OF
- ! an Industry, of town, of a city, at the
- command of an officer of private corpora
- ton; that railroad inequality Is the basis
80 of monopoly and the wrongful concentra
ton OF wealth; that no law Of more vita
,r Importance was ever passed by congress
IG and that those guilty of violating 1t arr
guilty Of a serious crime against the prin
mt ciples of Industrial freedom and equality.
EVERY sentence of this arraignment 4
true. That this court recognizes the i'm
portance of the enforcement of that act 4
sht shown in it's affrmance of penalties tina
IN under other circumstances would be re
ON garded as very severe. But the Interstat
ere Commerce act important as that law Is,
Ian not the only law under which we live. w
Ter live under a guaranty that reaches bacl
to the beginnings of our law and Is securel
a planted in the constitution OF every civil
&c" lied government that no one shall be pun
,o, ished until he has been heard, and abov
%" this fundamental guaranty there can be Sc
49,, no higher pTerogative, for let 1t once com
ing to pass that under the stress Of onforcin
and equality, any power in the government ma
;ul- override the fundamental rights OF bein
Judged only after having been duly trie
NJ "a right Just as essential in the associate
mn relation OF the corporation as TO men
. the relationship of copartnerships as
men individualy-there will remain n
commerce worth the name TO Safeguard
The beginning Of commerce is constitutions
government and the foundation Of cor
rain gtitutional government is the faith tina
last every guaranty OF our constitutions, 4
per- matter what the provocation viii be 81
any credly observed
: OF The court room was crowded wi h lawyer
and and newspaper men when Judges Gros
was cum Baker and Seaman took their seat
ater Judge Grosscup did not read the documen
merely referring to Il by number and sta
heir ing that the case had been reversed and r
the manded. There was jubllation among Il
hem Standard OIL lawyers, who declared tn
des. the decision had beeR-expected, while u
lEer government attorneys went quietly to
sims office To study the document.
Opinion of the Court.
,tD,- The opinion begins with brief stateme
day OF the manner in which the case VI
ness brought from the district court 70 the eou
In :, -..I So,,,v a ~ ths intaratata cor