The morning journal-courier., 1908-08-22
GOVERN MENT FILES OIL SUIT PETITION Request for Rehearing in Case Involving $29, 900, 900 Fine
 Asserts Elkins Law
 Is at Stake. REVERSAL A HARD BLOW If Governments Case Falls, Attorney General Declares Reforms Pres
 idcnt Urged Will Be
 Impossible.
REVERSAL A HARD BLOW


 lGnited States court of appeals of the case against the Standard oil conn pany of Indiana was filed to-day and represents, It Is authoritatiyely stated. the administration attempt to save the Eikins act and the interstate com merce law from becoming futile.
 The filing of the petition marked the appearance of Attorney General Bonaparte in the case as well as that of Frank B. Kellogg, who Is special assistant to the attorney general.
 "On but a single point involved in the trial up to the return of the ver- dict of guilty says the petition. are the ruling of the trial court criticised by the court of appeals. In all other particulars his rulings are sustained, The point on which the trial judge is reversed by the court of appeals relates to his ruling on evidence and his charge to the Jury with reference to ignorance on the part of the Stand ard oil company of the lawful rate as a defense. The court of appeals. in its opinion. has not correctly stat ed how the judge ruled on this sub | ject'
 Continuing, the petition declares that whereas the opinion of the court of ap- peals states that Judge LandIs refused to admit evidence to the effect that the Standard oil company did not know what the lawful rate was, the record of proceedings in the lower court shows l that cttah auIlaaAa olF,,ittaI
 Although the government points out what 1t considers other errors in the opinion of the appellate court, the al- legation that the Standard oil did not know that 1t was not paying the legal rate Is regarded as the vital point If, with the evidence introduced at the trial before Judge Landls. it can be held that the defendant did not have guilty knowledge of it's own acts. then successful prosecution of similar cases is regarded as impossible All the years of legislation designed to correct rebate abuses would have to be re- peated.
 The Standard oil company inter posed the claim In defense that the Elklns act was unconstitutional, that the tariffs had not been posted in two public places at the stations. and in, terposed many technical defenses
 The trial judge ruled that ignorance on the part of a shipper of what the lawful rate was could be interposed as defense, but that it would not con- stitute a defense If 1t appeared that the ignorance was the result of neg lect on the part of the shipper or of willful failure on the part of the ship per to resort to the sources of infor- nation which were available
 The government contends that this is the correct construction of the stat ute on this subject.
 The court of appeals lays down the rule that 1t is necessary for the gov ernment to show beyond a reasonable doubt, as a part of it's case, that the shipper actually knew what the law full published and filed rate was.
 The government contends that this is an impossible rule; that 1t Is con trary to the purpose of the Elklns act; that it is contrary to the general rule applicable in criminal cases; that put into effect it would make of the interstate commerce act "a mere will-o 'the-wisp of legislation, a phan- tom statute, destitute of strength or substance.
 The government contends in the petition that the court of appeals has misstated not only the record as to , what evidence was admitted but has also misstated the construction which
 the trial judge placed upon the stat
 ute, and that for this reason there should be a thorough reargument up-
 on the only proposition as to which the ruling of the trial judges up to the
 verdict of guilty Is reversed.
 The government contends that the . court of appeals has no right to placc 5 this construction upon the statute ir r the face of the fact that the very ques- Q tion involved in this case has been ex. 7 pressly left open by the supreme court !, in the Armour Packing company case l recently decided by that court Ihe l precise question involved in this case
 was stated by the supreme court ir
 that case. It was not decided by tht ] supreme court, however, because i was not involved, but was left open.
 The government insists that before Y laying down this harsh rule and prac
 tlcally nullifying the law the court O e appeals should certify In accordanc, e with the statute this question to th # supreme court for its decision; that m . court short of the supreme conr : should undertake practically to wip : the Interstate commerce act from tn s statutes.
 q The government contends that eacl Q shipment is the basis of distinct of d fense, and that in this case each car IT load was a separate shipment Tn 't circuit court of appeals has held tha
 there is but one offense for each set
 clement for freight.
 The government contends that :h 7. rule laid down by the court of appeal n is contrary to the principles of tn n Elkins act and leaves 1t to the ship U per and carrier to elect for how man e offenses they will be prosecuted an ' how much they shall be fined l. The government contends In the petl a ton that the court of appeals has don e great injustice to trial Judge Land 6 in mlsstating what he. did in connec : tion with the imposition of the fin '- on the Standard Oil company Il The circuit court of appeals in it
 opinion charges that Judge Landis as
 sumcd to fine the Standard oil con.
 pany of New Jersey, and imposed tn
 large fine for the reason that he wa 3 satisfied the Standard oil company { |, New Jersey was not a virgin offend l. err
 le The government shows in it's pet rs ton that Judge Landis never referre h, to the Standard oil company of Ne III Jersey in this connection, and that 1T IS language used was used in. connet l. tlon with the Standard oil company w Indiana and that nowhere were tt V nrnce ndinEa directed or nratenlnd tn !