The Birmingham age-herald., 1908-07-23

of one Edward Bogardus, who, being in absolute charge of the traffic af fairs of the plaintiff in errer during the period covered by the transaction, of fered to testify that during that pe- riod he did not know anything about an 1S-cent rate over the Alton rail- road; that his attention had never been called to any such rate by any person or by the examination of any docu- ment; and that it was his understand ing and belief based on what he was told by one Holland, tariff clerk of the Alton railroad; that the rate over the Alton was six cents and that such rates had been filed with the interstate com merce commission.
 Holland, who was called by the gov ernment, had previously testified that he had had no recollection of telling Bogardus that the slx-cent rate (the commodity rate) had been filed with the interstate commerce commission. Bur, answering on his voir dire, the jury being excused, Holland further stated that he regarded six cents per hundred pounds as the oil rate between Whiting and East St. Louis; that he regarded n certain application sheet which cov- cred Whiting at Chicago rates, and the sheet for Chicago taken together as showing a six-cent commodity rata that whenever he spoke of the rate ah this commodity between Whiting and East St. Louis he had in mind those papers and that if he had been ask T l by Bogardus or anybody else whether there was rate between Whiting and East St. Louis he would have answern that there was, and it was filed, and that such rate was six cents; whi ;h evidence thus proffered was excluded by the court for the sole reason as q matter of fact, as the court (not the jury) found the fact to be that the ap- plication sheet containing the six-cent commodity rate had not been filed with the interstate commerce commission. Had the court found as a fact that the sheet had been so filed or submitting the question to the jury, had the jury found that that sheet had been so fled the six-cent rate given to Bogardus admittedly would have been the lawful published rate.
 Bogardus as Witness.
 ''The court relates that Bogardus was offered as a witness to prove that a tariff describing a rate of 6A cents from Whiting to East St. Louis was issued by the Chicago and Eastern Illinois Rail road company, a competing line, october Vf merce commission two days later that such tariff sheet was among the tariff files in possession of the plaintiff in CT TOT, and that the latter, during the pe- riod named shipped there large num- Der of cars of petroleum and products at said rates and that such rates was equivalent to the shipper of the rate Of cents over the Alton road, owing to IA of cent terminal charges, all or whlca evidence was excluded as was also the offer of the tariff sheet itself, produced from the files of the interstate commerce commission end an amendment there'o filed in April, 19O3.''
 The oninion here quotes Judge Landis' charge to the jury, in which the district judge declared that to show that the de- fendant accepted a concession knowing ly it was not necessary to esta blish that the defendant had actual knowledge of the lawful rate.
 Comparative Cases.
 On this phase of the case the opinion of the court of appeals declares:
 In this interpretation of the interstate commerce law, so far as II relates 10 shippers, we cannot concur. The cases cited by the government, such as those recurring liquor sellers at their peru to know whether the person to whom drinK is sold is a minor or within the pronlpi- ton of the act or not, are not controlling nor very persuasive. The interstate com merce act was intended to promote, noc to restrain trade and commerce-to secure fair dealings in commerce through uni- forplity, not to put Instructions Tn the way of commerce. Surely the farmer who brings his produce to town to be shipped to city markets, or the small nt chinnipQ tO the country or Int householder who ships his furniture were not meant by the interstate commerce law to be guilty of having accepted a co.r cession merely because they took the word of the carrier or his agent as to what the rate was. In this respect the shipper and the carrier stand on dll- ferent ground. The carrier is required by a separate provision of the law to establish and push rates and is 1orpld- den to charge or collect from the shlp- her rate greater or less than such es- tablished and published rates But IS the ordinary shipper under any reason able view of the situation to which the law relates thus bound-bound at his neril under the law intended to pro mote commerce, to cipher out before hs can safely put anything that he mas into commerce. all the confusing papers and figures that generally make up 2 tariff sheet; plainly not, it seems to us
 In support of this contention the cour' cites first, "Bishop, New Criminal LAWS section 2S6.'
 Ignorance No Excuse.
 "Though 1t is true that large shippers like the plaintiff in error do not usuapiy take the word of a carrier as to wha' the rate is, but examine for themseives the tariff esheet and have all the Kno"' edge that is necessary to an intelligent examination from which it might easi's