New-York tribune., 1908-11-24
APPEAL IN OIL SUIT.
Mr. Bonaparte A&ks Supreme Court
for Writ of CertiOrari.

washington Nov 2S.-The governments petition
for q writ Of certloran in the s29,000O00 Standard
Oil case vas filed IN the Supreme Court Of the
United States to-day. The wording indicates that
the Department Of Justice is fully aware Of the
courts practice OF denying 60 cent Of such pet-
tions granting them only when constitutional ques-
tions are involved. The Attorney General makes q
strong effort to show that the present case falls
within this category. Much OF the body of the pc
tition is devoted TO reasons why the court should
review the controversy.
Attorney General Bonaparte calls attention to the
fact that the certificate process and the ceTtioran
proceeding the two methods by which cases
can be brought from the Court OF Appeals to the
Supreme Court, the former the initiative Of
the lower and the latter OF the higher court. tt
he says. will be seriously contended that be-
cause this is a criminal case the Court OF Appeals
would have had no right to certify any question
raised upon this record" and the contention is
made that II the could properly be transferred
from the lower to the higher court by of
certifcation it properly be brought up by
means of a writ the higher On this
point tbs Attorney General says:
1t may fairly be argued that the provisdon
serted in the statute because Congress did not
purpose to leave it wholly within the discretion
questions before IT sufficiently doubtful and
sufficiently important TO be reviewed by this court.
The Attorney General also takes the ground that
the Supreme Court possesses authority to order any
case Of which a circuit court of appeals has final
jurisdiction to be brought up by certiorar and to
determine II IN the same manner II 1t had been
taken up on appeal or writ of error by the de-
fendant. ut cannot" he says, 'be true that the
authority Of this court to exercise jurisdiction in
the interest OF the Hhole people in such
this may be cut off by a convicted defendants
choice Of the forum inferiorem."
He declares that the court in previous decisions
has so clearly construed the intent of the appeals
provision in the Circuit Court Of Appeals act that
there would to be little room for doubt that
1t has the ssme right to review a criminal case by
certiorari the application OF the government that
it to review a civil case"
The fact that the Court OF Appeals failed to n
slider many Of the governments assignments on
IS cited, and it is urged that this failure
meant that Judge Lands had committed other
errors. and therefore the appellate courts de-
cision afirmance by it Of the other portion
Of the Lands decision. It is pointed out however
that the Standard Oil Company takes the opposite
view Mr.. Bonaparte adds:
The trial of this case consumed many weeks, and
both the government and the defendant very
large sums of money. Several of the questions on
which the Court of Appeals thus refused to
tanly fail If the contention OF the defendant can
be sustained as to any one Of them. The reply
informs US that they win be again raised at a
second trial and yet the Court Of Appeals de-
silence means. A stronger case could hardly he be
presented for the, benefcent Intervention of this
Much attention also is given to the original
right of the defendant TO appeal from Judge
Landiss decision TO the Court OF Appeals. The
petition says:
Originally, when the defendant was tried and
convicted, that the end OF It. In giving him
the right of appeal the law intended that
the appellate tribunal should interfere with the
sole discretion of the trial court in regard TO the
character amount of punishment imposed. To
do so is to interfere with the discretion of the
lower court the one hand and with the pardon
power or the other.
The trial court committed by holding
the supplemental inquiry. The trial court was not
proceeding without authority exceeding its au-
thority, but proceeding under the statute
acting within the limits of punishment nv
the statute. II so, there question Of error
OF law to be reviewed, and the appellate court
had no legitimate function to perform respecting
the sentence In condemning Judge lands on this
of it's authority and usurped judicial power not
belonging to It The power and discretion to i'm
pose sentence is q personal power and discretion
committed to the trial judge. and cannot be re-
viewed revised by any other tribunal.
In closing, the Attorney General says he appears
merely as the representative OF the whols peope ,
and his only purpose is to suggest the court that
the case Is OF such nature that in the interest
Of the entire country it should be reviewed and au-
thoritativeiy determined by the highest court Of the
nation.
1t is understood that the petition will formally
presented to the court when it reconvenes next
Monday, but It probably win be acted on for
some time. II it is granted the entire VIII be
reviewed by the Supreme Court