The San Francisco call., 1908-12-20
OCTOPUS FIGHTS
REVIEW OF CASE
Standard Oil Files Brief in the
United States Supreme Court
Regarding Big Fine
Contends S29,OOO,OOO Penalty
Was Illegal and Justices Have
No Right TO Reopen Suit

WASHINGTON, Dec 19.-The stan
dard oil companys brief in the pro-
ceedings of the United States against
that company on the charge of accept
ing rebates from the Chicago and Alton
railroad, in which the United States
court for the northern district of Illi-
nois imposed a fine Of $29,240,00O, was
today fled in the supreme court of the
United States.
The case comes before the court on a
petition by the government for writ
Of certiorari bringing it up for review
OF the decision of the United tSates
circuit court Of appeals for the seventh
circuit by which the district courts
decision was reversed. The brief an
tagonizes the petition, and this oppo-
sition is based principally on the ground
that the law does not authorize a
review by the supreme court on an
application Of the government OF a
Judgment Of the circuit court of ap-
peals IN q criminal case by which a
writ Of error Of the defendant is sus-
1ained and disposed Of by reversing the
Judgment and sentence Of the trial
court"
OPPOSE ISSUANCE OF WRIT
It is contended that in case of this
character a writ Of certiorari is
equivalent to a writ Of error and that
the policy OF the law is against the
review Of a judgment IN IA or of the
accused in a criminal case 1T the in
stance OF the government
It is pointed out that while six cents
was the lawful rate on petroleum for
ali shipments from Chicago TO East
II. Louis, except from the stations Of
East Chicago, Hammond, Ind, and
Whiting or other suburban switching
points IN Indiana, from these points
The government contends that the rail-
road was required to charge is cents
per hundred. or three times the Chicago
rate, and that therefore the Standard
company, which shipped from the sub
urb Of Whiting at the Chicago rate,
was properly mulcted by the district
court in the sum OF S29,0O0,o00 ~fot not
shipping AT and paying a prohibitive
rate OF three times as much as the
Chicago rate"
Contention is made that due effort
was made on behalf Of the Standard
company 90 discover the legal rate, and
il is urged that the company should
not be held responsible for its failure
in that respect.
SARCASM IN BRIEF
Continuing the brief says:
Counsel argue the construction of
the Elkins amendment as If congress.
in passing It, regarded the shipment of
commodities IN Interstate commerce
as fraught with evil or danger to the
safety or morals of society. and that
il was therefore to be burdened with
penal restrictions. and that shippers
are 10 be held to a rule of diligence in
knowing that the rates at which they
ship are the current lawful, filed and
published rates, such as has been II
extreme cases applied to dramshoT
m mi or
druggists selling pOisons-
IT such was required of shippers, OF
the equivalent Of knowledge" at the
risk of criminal prosecution and severe
penalties, interstate commerce would
be greatly restrained and diminished
II not destroyed.
Referring to the governments con-
tention that the district courts assess
ment Of penalty was in the proper ex-
crcise Of the personal discretion OF its
presiding judge (Landis), the brief
declares that this is a discovery which
has been left TO the learned counsel
for the government to make at very
late date in the history of our juris-
prudence"
The brief proceeds:
DISCRETION OF JUDGE
It had always before been regarded
as settled that the discretion committed
10y law TO the judge was a judicial dis.
cretion and not personal discretion
erection by a trial court was subject Il
review for its abuse; and that the pro.
visions Of the eighth amendment to tn,
constitution forbiddiDg the imposition
OF excessive 1neS was binding upon
trial Judge: and that the imposition o.
an excessive hne IN violation of tina,
prohibition IS an abuse Of discretion
which is renewable.
This view that the trial Judge exer
clsed a personal power and discretion
was apparently shared by the distric
judge himself and the record and judg.
lncnt OF the trial court afford a strik
ing demonstration of the wisdom of IN.
rugged barons who wrested maen;
charter from King John and OF our an
cestors IN embedding its sanctions il
the bill OF rights in our constitution
In conclusion it is urged that tn
granting Of the writ would not be Jus