Los Angeles herald. [microfilm reel] (Los Angeles [Calif.]) 1900-1911, 1908-07-23
OCTOPUS MAY
SAVE FINE OF
$29,24O,OOO
CIRCUIT COURT OF APPEALS
GRANTS NEW TRIAL
JUDGE oRosscuP DELIVERS THE
OPINION
Justices Unanimous In Overriding
Lands Assessment Against OIL
Trust-Taft Refuses to
Discuss incident
tooptinp.d from Pare onsl

(Confinusd from Page onel
Judges Grosscup, Baker and Seaman
took their seats Judge Grosscup did
not read the document, merely referring
to 1t by number and stating that the
case had been reversed and remanded
There was jubilation among the
Standard OIL lawyers, who declared the
decision had been expected, while the
government attorneys went quietly to
Mr.. Sims office to study the docu-
nlent.
Entire Case Reviewed
The concluding sentence of the opin-
ion reads:
1.-THE Judgment of the district court
Is reversed and the case remanded with
instructions to grant new trial and
proceed further in accordance with this
opinion"
The opinion begins with brief state
ment of the manner in which the case
was brought from the district court
to the court of appeals. Section Of
the Interstate commerce act relating
to the publishing and filing of rates is
quoted, and the opinion continues:
There are one hundred and sixty
nine assignments of error taking up
sixty-seven pages of printed record
In view of the conclusion, however, to
which we have come, it is unnecessary
to review many of these assignments,
the ones reviewed covering all the
propositions of law that we deem es"
sential to the guidance of the district
court in the event of a second trial.
Comprehensively stated, the assign
ments Of error which we shall review
relate:
''First-To the view adopted by the
trial court carried out in its ruling
on the admission and exclusion of evil
dence and embodied in its charge to
the jury that shipper can be convict
ed for accepting a concession from the
lawful published rate, even though II
is not shown as bearing on the matter
of intent that the shipper at the time
of accepting such concessions knew
what the lawful published rate actually
was.
'sSecond-To the view adopted by the
trial court that the number of offenses
is the carloads of property transport
ed, irrespective of whether each car
load is the whole or the part only of a
single transaction resulting in Snip
ment.
''Third-whether in the imposition of
the fine named the trial court abused
the discretion vested in the court.
Each Subject Discussed
1--WE shall take up these subjects as
stated, the first being whether the ship
per can, without error, be convicted OF
accepting a concession from the law
ful published rate, even though it Is
not shown as bearing on the matter or
intent, that the shipper at the time OF
accepting such concession knew what
the lawful published rate actually was
in view of the law that is embodied
in the charge and carried out in the
ruling, excluding certain proffered tes-
ttmony, including that of one Edward
Bogardus, who, being in absolute contro
of the traffic affairs of the plaintiff in
error during the period covered by the
transactions, offered to testify that
during that period he did not know
anything about an 1S-cent rate over
the Alton railroad; that his attention
had not been called to any such rate
by any person or by the examination
of any document, and that 1t was his
belief, based on what he was told by
one Charles Hollands, tariff clerk OF
the Alton railroad, that the rate over
the Alton road was cents and such
rates had been filed with the interstate
commerce commission.
Hollands, who was called by the gov
eminent, had previously testlned tha'
he had no recollection of telling Bo
gardus that the scent rate "a com
modify rate) had been fixed with tht
Interstate commerce commission, bu
answering on his voir dire, the jury
icing excused, Hollands further stated
that he regarded cents per 100 pounds
as the oil rate between Whiting anc
East st. Louis; that he regarded Ger.
tain application sheet which covered
Whiting at Chicago rates and the sheet
for Chicago taken together as showing
a cents commodity rate; that when
ever he spoke Of the rate on this com
modify between Whiting and East st
Louis he had In mind those papers anc
that II he had been asked by Bogardu:
or anybody else whether there was a
rate between whiting and East st
Louis he would have answered thai
there was and that 1T was filed, ano
such a rate was cents; which evil
dence thus proffered was excluded by
the court for the sole reason that as q
matter of fact, as the court (not tbs
jury found the fact to be, the appll'
cation sheet containing this 6-cent com
modify rate had not been filed with the
Interstate commerce commission.
sogardus' Testimony
HAD the court found as fact that
the sheet had been so filed, or sub
hitting that question to the jury, had
the jury found that the sheet had beer
so filed, the scent rate given to Bo-
gardus admittedly would have been the
lawful published rate. The court re-
lates that Bogardus was offered as a
witness to prove that tariff describing
a rate of 81 cents from Whiting to
East st. Louis was issued by the Chi
cago g. Eastern Illinois Railroad COM
pany, a competing line, October 9, 1895,
and filed with the interstate commerce
commission two days later; that such
tariff sheet was among the tariff files
in possession OF the plainaiff In error,
and that the latter during the period
named shipped there under a large
number of cars of petroleum and pro-
ducts at said rate, and that such rate
was equivalent TO the shipper of the
rate of 6 cents over the Alton owing
to q quarter Of cent terminal charges,
all of which evidence was excluded, as
was also the offer of the tariff sheet
itself. produced from the files of the
interstate commerce commission and
IN amendment thereto filed in April,
1908"
The opinion here includes Judge Lam
dis charge to the jury, in which the
district Judge declared that to show
hat the defendant accepted conces-
Fion knowingly it was not necessary to
establish that the defendant had actual
AT.rns