Albuquerque morning journal. [volume] (Albuquerque, N.M.) 1903-1926, 1908-12-20
AntagonizeS Governments Pc
tition for Review of Decision
of United States Circuit
Court of Appeals,
CONSTITUTION CITED TO
SUPPORT CONTENTION
Policy Of Law Declared to bel
Against Reversal of Criminal
Judgment Rendered for De-
fendant,
IBy Morning journal Special Leased wircI

IBy Morning journal Special Leased WireI
Washington, D. c., Dec. 19.-The
Standard Oil company's brief in the
proceeding Of the United States
against that company on the charge
of accepting rebates from the Chicago
& Alton railroad in which the Uni
ted States court for the northern dis
trict of Illinois imposed a fine of SEQ
100000 was today filed in the su-
prene court of the United states
The case comes before the court on
petition by the government for q
writ of ccrtiorari bringing it up for
review of the decision of the United
states circuit court Of appeals for the
seventh circuit. by which court the
district courts decision was reversed
The brief antagOnizes this petition and
this opposition is based principally on
the ground that the law does not "au-
thorizc a review by the supreme court.
ON an application Of the government
of a judgment OF the circuit court of
ap pcais 10 a cranIlai cas- by hica .
writ of error Of the defendant is sus-
tanned and disposed OF by reversing
the Judgment ana sentence Of the
trial court"
1t is contended that in a case of
this kind writ of certiorari is cquiva-
lent to q writ of error and that the
policy Of the law is against the review
of Judgment i'm favor of the accused
in a criminal case at the instance Of
the government"
It is pointed out that while six
cents was the lawful rate on petroleum
fer all shipments from Chicago to
East st Louis except from the sta
tons at East Chicago, Hammond, Ind.
and Whiting or other suburban SWITCH
ing points in Indiana. From these
points the government contends that
the railroad was required to charge
eighteen cents per hundred or three
times the Chicago rate and that there
fore the standard company which
shipped from the suburb of Whiting
at the Chicago rate was properly
mulctcd by the district court in the
sum Of $29.0O0,000 for not shipping
at and paying a prohibitive rate of
three times as much as the Chicago
rate" Contention is made that due
effort was made on behalf of the
Standard company to discover the
legal rate and it is urged that the
company should not be held respon-
sible for its failure in that respect
Continuing. the brief says:
Counsel argues the construction of
the Elkins amendment as if congress,
in passing it, regarded the shipment
of commodities i'm interstate as fraught
with evil or danger to the safety or
morals of society, and that g was
therefore to be burdencd with penal
restrictions. and that shippers are to
hc held to a rule of diligence in know
ing that the rates at which they ship
are the current lawful, filed and pub
lished rates. such as has been in cX-
trcme cases applied to dramshcp
keepers selling liquors to minors or
druggists selling poisons. If such /
shippers were required to carry on
business under such "A rule as to dill I
gcnce or the equivalent of knowlodgc' /
at the risk OF criminal prosecution and |
severe penalties, interstate commerce |
could be greatly restrained aud dim |
inished if not destroyed"
Referring to the governments CON !
tention that the district courts as
sessmcnt of penalty was in the proper /
exercise of the personal discretion of /
its presiding judge tMr. Landis) the |
brief declares that this is a discovery |
which has been left to the learned +
counsel fer the gopernment 10 make /
at a very late date in the history Of /
our Jurisprudence 1t had always be- .
fore been regarded the brief pro-
ceeds. las settled that the discretion /
committed by law To the judge was
q judicial discretion and not per-
sonal discretion. and that the exercise
of judicial discretion by trial cour,
was subject to review for its abuse:
and that the provisions Of the eighth
amendment to the constitution forbid
ding the imposition of excessive fines
as binding upon trial judge: and
that the imposition of an excessive
fine in violation of that provision is AN
abuse OF discretion which is review
able
This view that the trial judge ex-
'rcised "a personal power and discre-
ton was apparently shared by the
district judge himself and the record
and Judgment Of the trial court ar
lords q striking demonstration of the
wisdom of the rugged barons who
'rested magma charta from King John