The Salt Lake tribune. [volume] (Salt Lake City, Utah) 1890-current, 1908-11-11
Governments Petition Is De.
MED by the Circuit Court
of Appeals.
MAY NOW BE TAKEN
TO SUPREME COURT,
Decision Is Blow to Those in
Favor of Rate RefOrma.
ton.

CHICAGO, Nov. 10.-The govern
case in which the United States circuit
court of appeals reversed the trial court
in fning the Standard Oil company OF
Indiana 500 9,240000 for alleged rebatipg,
was denied in the court of appeals TO-
day 1t is authoritatively stated that
the government will now attempt TO
bring the whole matter before the su-
prene court on a writ of certiorau-
Tho government in its petition foE
rehearing intimated that if the opin.
ION Of the judges Of the appellate court
-Grosscup, Seaman and Baker-were
allowed to stand, it would nullify
nearly every shred OF rate reformation
having been accomplished by the
Roosevelt administration.
In summing up its position, coup-
sci for the government said that the
opinion of the court of appeals as 1t
tions of the record; did injustice to the
trial Judge Iandis); left doubtful, In
new trial, the rule of law to be ap-
piled both as TO knowledge on the part
Of shipper that he was accepting an IL
legally low rate; did not make it clear
what was to constitute one oHense-a
trainload, a carload, OF whole series
mont Of freight charges had been made.
Language in Conflict.
It was further alleged that the Ian
to be in conflict with the language OF
the supreme court, and that the Ian
guage used by the presiding judge,
Judge Grosscup, in a previous similar
case. The petition closed with 3
statement that il the opinion of the
court of appeals were permitted to
stand unmodified it would ''tend to en-
courage disobedience to the law; to I'M
pede the enforcement OF statutory
statutes and largely TO defeat their pur'
pose,'
In overruling the petition, the court
says: "'The petition for a rehearlug
questions the correctness of the text OF
that portion OF the opinion that relates
to the trial Judges S statement, in pass
ing sentence, that he was unable to in
dulge the presumption that in this case
the defendant was convicted of its virgin
offense the point of tje petition be-
ing, tina. IN the use Of the word de
tenoant' in connection with virgin Of
fense,' the trial court referred o-the
Standard Oil company of Indiana and
not to the Standard Oil company OF
New jersey.
Nominal Defendant.
'EThe trial court, in passing sentence,
expressly stated that the Standard Oil
company of Indiana was but the nomi-
nal defendant, the Standard Oil com
pany of New Jersey being the real de
fendant, and every word, almost, OF
the trial court, IN arriving at Its con
clusion respecting the sentence, related
TO the Standard Oil company of New
Jersey and not to the STANDARD Oil
company of Indiana, including the
statement that the revenues of the 'of
fender and the character of the crime,
showed that they had d peculiar rela-
.tion to each other-the revenues re-
ferred t6 obviously being the revenue.
of the Standard Oil company of New
Jersey-4o PEI. cent on 500, 600 900
pany of Indiana being in the record at
'ECounsel for the government
plant their justification Of the fine upon
the showing of the revenues, not Of the
Standard Oil company of Indiana, but
Of the Standard Oil company of New
Jersey. But as a suggestion that that
line in tho text OF the opinion be
changed, the suggestion will be accept
ed, and the opinion so amplihed that
while the language used to express the
point is changed the substance of the
principle involved will be more clearly
brought out.
AS to Shippers.
"The petition for a rebearing also
questions the correctness OF the text OF
that portion Of the opinion IN which,
dealing with the question whether a
shipper is guilty of accepting conces
sion even though il is shown that the
shipper ut the time of accepting such
concessions, did not know what tho
lawfully published rate actually was,
the view taken by the trial court is said
to be "a view of the law that is en-
bodied in the charge and carried out in
the rulings, excluding certain preferred
testimony, including that of one Ed
ward Bogardus-the point OF the com
plant being that the testimony of Bo.
gardus, as TO whether he knew or did
not know Of an lS-cent rate over the
Alton road was not excluded
"Now, rs a matter as to what physi-
cally went into the record, Bogardus
testimony was admitted and went to
the jury on the issue adopted by the
court whether he had made 'diligent en-
dcavor' TO ascertain the rate-an issue
wholly different from the one upon
which it was offered, namely: Whether
or not defendant had knowledge OF
what the lawfully established rate was.
On the later issue. the testimony of Bo-
gardus was as effcctually excluded by
the charge to the Jury, as II II had
been physically expunged from the rec
ord. -
Closing Argument.
In closing. the court of appeals paws
it's respects to Attorney General Bona
parte Special Assistant Attorney Gen.
eral Frank b. Kellogg District Attorney
Edw. ". Sims and Special Assistant
United States ATTORNEY James III. Wal
kerson, whose names were signed 10 the
petition. in the following paragraph:
''Courts have tho right to expect th8'
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