The Montgomery advertiser., 1908-07-23
GOVERNMENT FORCES WILL
 CONTINUE LEGAL BATTLE
Judge Landis Scored for Abusing
 Power of Discretion.
sudge Grosseup Contends Thst the Fine should Have Been Based on settiemests Between the
 Railroaa and the OH
 Company.

Chicago, July 22.--Although the Unit ed States Circuit Court of Appeals to- day reversed and remanded the case of the Government against the Standard oil company.of Indiana. In which Judge Landis in the District Court had inn posed fine of $2s.240,000. the Govern- ment forces will continue the legal bat tie.
 The Government has thirty days in which to file petition for a rehear- ing, and it will be filed within the al-- lotted period. In his opinion, which was concurred in by Judges Seaman and Baker, dealing with the intent" feature of the case. a vital point--Judge Grosscup sayb:
 we should take up these subjects in the order stated. the first being be convicted of accepting a concession from the lawful published rate.- even though it Is not shown as bearing on the matter of Intent that the shipper at the time of accepting such .conces- sion knew what the lawful published rate was--a view of the law that is embodied in the charge and carried out in the ruling excluding certain protfered testimony. including that of one Edward Bogardus, who. being in absolute charge of traffic affairs of plaintiff in error. offered to testify that
 
 anything about an 1s cent. rate over the Alton Railroad; that his attention s had never been called to any such rate by any person or by the examination of any document and that tt was his understanding and belief based on what he was told by one Holland. tarif clerk of the Alton Railroad. that the. rate over the Alton Road was cents; and that such rate had been filed with .he Interstate Commerce Commission"
 Basls of Fine
 Judge Grosscnp's opinion leaves It, lie of the contention that each carload at the eAceHit rate constftuted 8 aepa. rate offence. Evsn the shipments, of which there were about S00s could not De so considered under the ruling of the court. The fine should have been based on settlements between the rail. road and the oil. company. Of these, there were just thirty five The max lIlrrfn fine on this basis would amount to but s72o.e and the minimum sse,- 900.
 In the event 3 rehearing Is denied. the Government may so to trial on the nri9inai indictment, containing L462 counts--an action which District At torney Sims could be ready to take within two weeks--or upon any one Of seven other indictments containing A422 counts. As a vast amount or work has been done on the case just decided. 1t is unlikely that an entirely new case will befnstituted. The rec. ord of the present case contains over a million and e half words. and Ia es- tinated to have cost the Government S2O0,000.
 Another move which may be made by the Federal authorities is to transfer Inc prosecution from this Jurisdiction ~ either to the Western New York dis trict or the Eastern Tennessee district. In these two districts, the Government investigation led to indictments con- taining about 2,O00 counts against the Standard Oil Company. ~ That portion of the deciaiop epi- tomizing the attitude of the court was as follows:
 Counsel for tfie Government say in Z concluding their brief. that the Elkins act was passed because the peace Of society and the welfare of the people demanded it; that railroad inequality means business ruin to all except those powerful enough to make themselves the benehciaries of the discriminations: means the wiping out Of an industry of town, of I city, at the command of officers of private corporation; that railroad inequality is the basis of monopoly and the wrongful conception of wealth; that no law of more vital importance was ever passed by Con. gress; and that those guilty of violat- ing it are guilty of serious crime against the principles of industrial freedom and equality.
 Every sentence of this arraignment is true that this court recognizes the importance of the enforcement of that act is shown in It's afiirmance of pen alties that under other circumstances would be regarded as very severe. But the interstate commerce act, important as that law Is, Is not the only law un- der which we live.
 Fundamental Rights.
 We live under a guaranty that reaches back to the beginning of our law. and is securely planted in every constitution of civilized government that no one shall be punished until he has been heard and above this funda- mental guaranty. there can be set no higher preprogative; for let 1t once come to pass that under stress of enforcing equality, any power in the government may override the funda- mental rights of being judged only after having been heard-a' right just as essential in the associated relation of the corporation as to men in the re- lationship of co-partners or to men in- dividually--there will remain no com rnerce worth the name to safeguard. The beginning of commerce is consti- .tutional government, and the founda- ton of constitutional government is the faith, that every guaranty of our institutions no matter what the. provo cation, will be sacredly observed
 The court room was crowded with lawyers and newspaper men when Judge Grosseup. accompanied by Judges Baker and Seaman. took their seats. Judge Grosscup did not read the document, merely referring to it by number and stating that the case had been reversed and remanded. There was jubilation among the Stan dard oil lawyers who declared that the decision had been expected, while the government attorneys went quietly to Mir. Sims once to study the document. The whole proceedings occupied only a few moments.
 Appeal from Verdict.
 The decision handed down today by the United States Circuit Court of AD-