Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-08-21
TO. SAVE ElK|NS LAW
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to show beyond a reasonable doubt. as a
part of its case that the shipper actually
knew what the lawful published and filed
rate was.
an impossible rule; that it Is contrary to
the purpose of the Elkins act: that 1t Is
contrary to the general rule applicable
in criminal cases: that put into effect II
act "a mere w'ill-o'-the-wisp of legisia-
ton, phantom statute, destitute OF
strength or substance"
The government contends in the petition
that the court of appeals has misstate
not only the record as to what evidence
was admitted, but has also misstated the
construction which the trial judge placed
upon the statute. and that for this rea-
son there should be a thorough reargu-
ment upon the only proposition as to
which the ruling of the trial judge up to
the verdict of guilty Is reversed.
The government contends that an ex-
animation of the record will show that
the court did not rule out the testimony
tending to show want of knowledge. but
that on the contrary, all proper evidence
tending to show that the defendant was
ignorant of the facts with reference to
the legal rate was admitted for the con-
sideration of the jury, and that there was
ample evidence to show that the defend
ant did know what the legal rate was.
Misstatements to Court.
In other words. the government con-
tends vigorously and with references to
the record that the reversal Of the case,
SO far as the ruling of the trial Judge
with reference to ignorance OH the part
OF the shipper as a defense is concerned,
is based upon a misstatement by the
court Of the record in the case as to the
admission Of the evidence and to a mis-
understanding by the court OF what the
trial judge ruled with reference to the
admission Of evidence and how he really
charged the jury.
that the effect Of the construction of the
statute announced by the court Of ap-
peals Is to nullify the Interstate COM
merce act so far as shippers are con-
cerned: to make its enforcement impossi-
BILE, and to plunge the country again into
the deplorable condition Of railroad dis
examinations and favoritism which existed
prior to its passage.
The government contends that the court
Of appeals has no right to place this con-
struction upon the statute in the face of
the fact that the very question involved
I'm this case has been expressly left open
by the Supreme Court in the Armour
Packing Company case. recently decided
by that court. The precise question in
volved In this case was stated by the Su-
preme Court in that case. 1t was not de-
cided by the Supreme Court, however, be-
cause it was not involved. but was left
open.
The government insists that before lay
ing down this harsh rule and practically
multiplying the law the court of appeals
should certify In accordance with the
statute this question to the Supreme
Court for its decision: that no court short
of the Supreme Court should undertake
practically to wipe the interstate COM
merce act from the statutes.
The petition states before the govern
ment is required to try this case under
the rigid rule of construction laid down
by this court. is it not manifestly fair and
right in the interest not only OF justice
In this case. but in the interest of final
and definite construction of this i'm
pOrtant statute, that Judgment be taken
of the highest tribunal of the nationy'
The government contends that the court
of appeals in its opinion has laid down an
erroneous rule for determining the num-
Der of offenses.
The government contends that each
shipment is the basis Of a distinct Of
Tense: and that in this case each carload
was separate shipment.