Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-11-10
REHEAR|AG DENIED
TO THE GOVERNMENT
Reversal of $29, ,240,0 900 Fine
on Standard Oil Company.
APPEAL WILL BE TAKEN
Case Will Be Brought Before the
Supreme Court.
STAY OF MANDATE IS GRANTED
Claims Of the Government Disputed
and Course Of It's Coun-
sci Criticised.
APPEAL WILL BE TAKEN
STAY OF MANDATE IS GRANTED

sci Criticised.
>CHICAGO, November 10-The gov-
ernment's petition for . rehearing 81
the case in which the United States
circuit court Of appeals reversed the
trial court In Aning the Standard OH
Company Of Indiana e20, ,240 900 for al
legged rebating was denied In the court
Of appeals today. 1t u authoritatively
stated that the government Will now
attempt to bring the whole matter BE-
for the United States Supreme Court -
q writ Of certiOrari.
Immediately upon the overruling Of the
petition District Attorney Sims applied
for a stay of mandate, which was granted.
thus leaving the case still before the court
Of appeals, pending the governments at
tempt to have the case taken before the
Supreme Court of the United States on a
writ OF certiorar.
The Governments Contention.
The government in its petition for a re.
hearing intimated that IL the opinion of
| the judges of the appellate court-Gross-
cup, Seaman and Baker-were allowed to
| stand 1t would nullify nearly every shred
of rate reformatory legislation accom-
plished by the Roosevelt administration.
| In summing up its position counsel for
| the government said that the opinion OF
the court of appeals as It stood erroneous
! ly stated material portions OF the record;
did injustice to the trial judge Oandts):
| left doubtful In a new trial the rule OF
law to be applied both as to knowiedgs
on the part Of the shipper that he was &C
| cepting an illegally low rate: did not make
| 1t clear what was to constitute ono OF
| fense-a train load. car lot or q whole
series Of shipments for which but one
settlement Of freight charges had been
| made.
| 1t was further alleged that the Ian
guage of the appellate judges appeared
to be in conflict with the language Of
used by the presiding Judge. Judge
Grosscup. in q previous similar cases- The
petition closed with statement thst II
| the opinion of the. court Of appeals were
permitted to stand unmodihed 1t would
"tend to encourage disobedience to law.
to impede the enforcement Of salutary
| statutes and largely to defeat their pur-
pose
Oil Trust Real Defendant.
In overruling the petition the court
| said:
1.-THE petition for rehearing on the
case questions the correctness Of the text
Of that portion of the opinion that re-
lates to the trial judges statement In
passing sentence that he was unable to
| indulge the presumption that in this case
the defendant was convicted of It's virgin
offense'-the point of the petition being
that in the use of the word defendant
trial court referred to the Standard Oil
Company of Indiana and not to the
Standard Oil Company of New Jersey.
The trial court in passing sentence ex-
cIx cfo tod hot fha Sfor
pany of Indiana was but the nominal de-
fendant. the Standard OIL Company OF
New Jersey being the real defendant. and
| every word almost of the trial court, In
arriving at its conclusion respecting the
sentence. related to the Standard U,l
Company of New Jersey and not to the
Standard OIL Company OF Indiana. in
cluding the statement that the revenues
Of the Offender and the character OF the
crime showed that they had peculiar
relation to each other-the revenues re-
ferred to obviously being the revenues OF
the Standard Oil Company of New Jer-
nues of the Standard Oil Company of In
diana being in the record at all. ana
counsel for the government plant tner
justification of the fine upon the showing
of the revenues, not OF the Stanoaro VI,
Company of Indiana. but OF the Standard
Oil Company of New Jersey.
But as a suggestion that that line In the
text of the opinion be changed the sug-
gestion will be accepted, and the opinion
SO amplified that while the language useo
to express the point is changed the SUD-
stance of the point involved Will be more
clearly brought out.
Testimony Of Bogardus.
"The petition for rehearing also
questions the correctness OF the text OF
that portion Of the opinion in which.
dealing with the question whether
shipper is guilty of accepting a conces-
sion, even though it is shown that the
shipper at the time of accepting such
concession did not know what the law
fully published rate actually was. the
view taken by the trial court is said to
be view of the law that is embodied In
the charge and carried out In the rulings
excluding certain proffered testimony, IN
cluding that of one Edward Bogardus.
the point of the complaint being that the
testimony Of Bogardus as to whether he
knew or did not know of an 1S-cent rate
over the Alton road was not excluded
Now. as a matter of what physically
went into the record, Bogardus testi-
mony was admitted and went to the
jury on the issue adopted by the court
whether he had made dilfgent endeavor
to ascertain the rate-an issue wholly
different from the one upon which II was
offered viz: Whether or not defendant
had knowledge of what the lawfully es-
tablished rate was. On the latter is
sue the testimony of Bogardus was as
effectually excluded by the charge to the
jury as If 1t had been physically ex-
plunged from the records"
Criticism Of Counsel.
In closing, the court Of appeals pays
it's respects to Attorney General Bona
parte Special Assistant Attorney Gem
eral Frank B. Kellogg. District Attor-
ney Edward w. Sims and James H. VIII
kerson. special assistant United States
attorney, whose names were signed to
the petition in the following paragraph:
Courts have the right to expect that
counsel accustomed to practice In the
courts of review not only know the
meaning of legal terms constantly in use
In discussions and opinions OF these
courts. but will not misuse such terms to
spread misinformation respecting q judg-
ment that in the nature of the case 10
bound to attract wide public attention
remark the germaneness Of which the
bar of the country will perceive when We
say that all that has to be done to obvi-
ate the objection made Is to insert q
clause 30 that the portion of the opinion
objected to will read a view Of the law
that is embodied in the charge, and car