Daily Kennebec journal., 1908-12-21
Standard Files Brief in
Famous Rebate Case
Quotes Reasons Why Case
Shouldn't Be Reviewed.
Says Judge Lands Used Personal
Discretion in Fixing Big Fine.


Oil Co.'S brief in the proceeding of the
United States against that company
on the charge of accepting rebates
from the Chicago & Alton Railway III
which the United States district court
for the northern district of llllnois
imposed a fine of $99.24O,0O0, was filed
Saturday in the supreme court of the
United States.
The case comes before the court on
a petitiun by the government Tor
writ of certiorari bringing 1t up 1or
review of the decision of the Unlteo
States circuit court of appeals for the
seventh circuit, by which court the
district courts decision was reversed.
The brief antagonizes the petltloh
and this opposition is based prlnipai-
w on the ground that the law "doesnt
authorize a review by the supreme
court on an application OF the govern
ment OF Judgment of the circuit
court of appeals in a crlmlhal case ny
which q writ of error of the defendant
is sustained and disposed Of by revefs-
ing the Judgment and sentence OF the
trial court 1t is contended that in Il
case~of this character writ OF GER
tiorari is equivalent to a writ or cf-
ror and that 1.-The policy OF the law Is
AGAINST the review of Judgment IN
favor of the accused in a criminal case
at the instance of the government.
Tho brief says further:
"(,ounSel rs well rs the trial court
have overlooked the obvious consider
aIion that the controlling purpose "l
TIE acts to regulate commerce is tc
promote and facilitate commerce ahd
not to hamper or destroy it.
Counsel argue the construction OF tht
Elliins amendment as if Congress, IL
passing it, regarded the shipment of com
modities in interstate commerce rs
fraught with evil or danger TO the safety
or morals Of society and that it was
therefore to be bmdencd with penal re-
strictions, and that shippers are to b'
held to a rule of diligence in knowing
that the rates at which they ship are
the current lawGul. filed and published
rates, such as has been in extreme cases
applied to drawshop keepers selling IL
uuors to minors or druggists selling
poisons.
'If the shippers are required to carry
or business under such rule as to dlll
gence or the equivalent of Knowledge n
the risk of criminal prosecution and 8"
we're penalties, interstate commerce Woul'
be greatly restrained and diminished. i
not DESTROYED. What is said in the opinion
of the circuit court of appeals is apt OIL
this question"
Referring to the governments conten
ton that the district courts asseSslnen
of PENALTY was in the proper eXeIcis o
the personal discretion of its presidln'
| judge (Ir. Landis), the brief declare
| that this is discovery which has beel
| left to the learned counsel for the gov
ernment to make at a very late GATE II
| the history of our Jurisprudence
ut had always before been regarded.
| the brief proceeds, "as settled mat IN
discretion committed by law to the juds
was a judicial discretion and not peF
sonal discretion: and that the eXerclS
of judicial discretion by a trial court wa
sub iect to review for its abuse ana ina
the provisions of the eighth amendment t
| the Constitution forbidding the lmposl
| ton of excessive fines is binding upon
| trial Judge and that the imposition c
an excessive fine in violation of that pro
| hbition is an abuse of dissection Whlc
| is renewable.
This view that the trial Judge eNcl
! cised "A personal power and discretion
was apparently shared by the learne
district judge himself and the record an
| Judgment of the trial court affords
striking demonstration of the wisdom {
the rugged barons who wrested MaEn
Charta from King John and of our n,
cestors in embedding it's sanctions IN Il
hill of rights in our Constitution
In conclusion it is urged that tn
granting of the writ would be miusiif
able.