The Mitchell capital. (Mitchell, Dakota [S.D.]) 1879-1918, 1908-08-28
laid down an exactly contrary rule to the
one which he laid down in the Standard

laid down an exactly contrary rule to the
one which he laid down in the Standard
Oil case.
The government contends that the rule
laid down BY the court of appeals is con-
trary to the principles of the Elkins act,
and leaves it to the shipper and carrier to
elect for how many offenses they will be
prosecuted and how much they shal DO
lined.
The government contends In the petition
that the court Of appeals has done a great
injustice to Trial Judge Lands in misstas-
ing what he did in. connection with the
imposition of the fine on the Standard OH
The government claims that the facts
before the court of appeals Justify the i'm
position OF the penalty inflicted by the
1t appears from the record in the cir.
cult court of appeals that the net profit
of the business of the Standard Oil Com
Judge Lands fined. for the years during
which the violations of the law for which
it was convicted were, committed and in,
GLIDING the year IN which 1t was indicted
amounted to $SS, $50, 2os.s0.
Not Too Severe.
The punishment therefore is NC more Sc
we're thar that is inflicted upon a letter
carrier who steals a letter and is sent
by depriving him OF his earning capacity
for that time. 1t is not nearly so severe
as the minimum penalty, of five years in
the penitentiary imposed upon a banker
who misapplies the funds of his bank.
The government claims that on account
of the size of the fine alone, there is no
the circuit court of appeals may, itself,
name tho fine which should. be imposed
and calls upon the court to do so in case
it adheres to the view that Judge Landls
abused his discretion in imposin. SO large
O fine.
In Conclusion.
The petition concludes:
ut Is therefore respectfully submItted:
THAT the opinion Of this court is based
upon a misconception OF the record with
reference to the rulings Of the trial judge
show want of knowledge, and with refer
ence to his construction of the statute on
that subject, and the theory on which the
gardus which it is claimed showed want
of knowledge was admitted. that 1t was
overcome. however, by the facts and cir
dence as an entirety was sufficient to,
show actual knowledge, or what In law
was its equivalent:
THAT the Interpretation of the statute
by. this court, imposing no duty on the
shipper and permitting a defense of ignor-
ance to be made without regar to the
the language of the statute and to its
purpose, and seriously impairs the eff
cheney Of the act:
THAT the ruling stated in the opinion.
as to the basis for determining the num-
Der of %offenses involves an erroneous con-
of the statute and fails to take
NV llidl Vie III "liCil
Is prohibited by the act Is the transporta-
ton Of property at the unlawful rate;
THAT the criticism OF the trial judge for
abuse OF discretion rests upon a wrong
assumption OF what the trial judge actual
ly did and ssumes that he attempted to
try and punish the Standard Oil Company
of New Jersey, when in fact. as appears
from the record, the entire proceedings
were directed against the defendant the
Standard Oil Company of Indiana;
THAT the ruling stated in the opinion
to the effect that a fine is excessive when
1t exceeds in amount the ability of the
criminal law and If generally applied
would prevent the practical enforcement
That, in short, the opinion as 1t stands
enormously states material portions OF
the record; does injustice to the trial
judge; leaves doubtful in a new trial the.
rule Of law to be applied, both as to
as to the number Of offenses: appears to
be in conflict with tho language OF the,
supreme court and with the previous Ian.
guage Of the presidips JUDGE = court,
and with the greaty Aauth--
and. IL permiteeU IN
ence to law, to impede the enforcement
of salutary statues and largely to defeat
their purpose.
For the reasons stated we respectfully
that a ~reargument Of this case be.
The petition is signed:
Charles j. Bonaparte,
Attorney General.
Frank B. Kellogg,
Special Assistant to the Attorney Gen.
Edwin W. Sims,
United States Attorney.
James II. Wilkerson.
Special Assistant United States Attor-