The Birmingham age-herald., 1908-07-23

follow that profession of ignorance on the part of such shipper would stand on a different plane
 from the ordinary shipper, 1t does not on that account follow that the ulti- mate question of intent is not the same, whether the shipper be q large one or a small one; for the law is the same for all shippers and the duty deyolving on the government is the same, viz:
 That before conviction there must be proof of all facts upon which the ship per's' offense is predicated.
 This view of what is essential to con- stitute the offense makes 1t plain that the trial court was in error as matter of law in the application in the case of the shipper of the principles that the trial court applied in this case. And this error is made all the plainer, lifting 1t from what otherwise might be considered q mere technical error to the level of real supsts< tial error, when the exact nature of the so-called tariffs published and filed, relied upon by the government as the lawful rate, are scrutinized; and when the rate that the trial court de- ciphered out of these papers is compared with admitted rates on other roads for the same product, and with the admitted rates on the same road for like product.
 
 published rate filed with the interstate commerce commission is tariff sheet No. 24 of the Chicago and St. Louis Traffic association and the first thing to be mo- ticed is that this tariff sheet makes no ref erence by name to petroleum or products of petroleum. On the face of that tarir sheet, no 1S-cent rate for petroleum or the products of petroleum appears The lS-cent rate was only arrived at by @P r+aiv otr is to say on the face of these tariir sheets there was found a printed line, governed by Illinois classification except as noted herein; then by turning to classification adopted by the railroad anu warehouse commission of Illinois Septetn- Der T. 1899. it was found that petroleum and it's products were set down Tn nftn class and then by turning back to tariH sheet No 24 1t was found that the rate set down for the fifth class was 1S cents per 100 pounds And so out of this pro cess of reference and reference the lawful published rates was evolved by the trial court to be IS cents not be- cause 1t so appeared on the face or the tariff sheats but because by reference to other sheets-sheets fixing, not rates' but classiheations, and that not by ths interstate commerce commission or the carrier, but the Illinois railway commits sion-it could be so figured out"
 Nice Questions.
 Tie court remarks the number of nice judicial questions raised in the case and declares that the court is not pre- pared to say that tariff sheet No. "A real ly fixes the rate on petroleum ana It's products at IS cents.
 ."rhe most we can say,' the opiniop reads, s'is that this is question upon which judges after full discussion mgha very reasonably disagree.
 The error of the trial court in taking away from the plaintiff in error its right to submit to the jury the whole question ol whether it had knowledge of the tariH sheet from which it is said to have ac- cepted a concession, and, therefore, w>th intent to violate the law-whether the rate paid was not paid in the honest pehet that it was the lawful rate-is an error that rises into one of solid substance
 Taking up the question as to whether each shipment constituted a separate ol- fense by which interpretation of the law Judge Lanofis imposed the largest me III history on the Standard Oil company, the court has this to say
 Gist of Offense.
 .'rhe gist of the offense is the accep- tance of a concession irrespective or
  loads, train loads or pounds Has snip per fully and finally accepted concession when he has done nothing more tnah lo agree with the carrier that less than the published and filed rates shall be paid TOT the transportation of his property? IS " rot necessary that the transaction ps closed by actual payment of the lower rate? In the rebate the shipper paid III the first instance the full rate to the car Tier and afterward received back part Manifestly the offense of ac cepting re- bate has not been committed unless tue shipper has taken back a part Of the llrst | money, whereby his property has pee' transported at less than the lawfui rate Proof that he agreed to accept a return Of part of the full rate-stopping there- would not support an indictment TOT ac- cepting a rebate Such an agreement IS not binding and at any time Delore 'e9 l complete conclusion the shipper may re pent and insist lpon the carrier keepine | the whole amount The concession diHeiS l from the rebate only in this, that Ill COT l ciliating the shipper instead of paying the 1 full rate and receiving back part, mercy | settles for the difference. The result 's i the same-the property is transporteo tor the same amount less than the iawiui | rate. And there is no basis in the s'atutes ! for holding that in the case Of acepth9 q concession the transaction IS cohou l mated, and the door of repentance ID closed at any moment earlier than m tnt | case Of accepting rebate. So prool .na' | T shipper has agreed to accept coiices- sion, stopping there will not support i, an indictment for accepting concessions un.A the intended wrong becomes an accon'- 1 plished fact
 Arbitrary Measures. l "The number of offenses In the piesen' case should have been ascertatned Ill ac-