Evening star. [volume] (Washington, D.C.) 1854-1972, 1908-12-20
Denies Supreme Courts Right
to Review Fine Reversal.
PROSECUTORS ARE SCORED
Criticised for Constituting Law as if
Commerce Were Immoral.
INTERSTATE TRADE MENACED
Exercise of Personal Discretion Of
Trial Judge Regarded as Un-
justified by Precedents.

The Standard Oil Companys brief in
the proceeding Of the United States
against that company on the charge of
accepting rebates from the Chicago and
Alton Railway Company, in which the
United States district court for the north
ern district Of Illinois imposed fine of
$50, 24O.O goo. was yesterday filed in the
Supreme Court of the United States.
The case comes before the court on
petition by the government for writ OF
certiorari, bringing 1t up for review OF
the decision Of the United States circuit
court of appeals for the seventh circuit,
by which court the district courts deci-
sion was reversed.
The brief antagonizes the petition. This
opposition is based principally on the
ground that the law docs not authorize
a review by the Supreme Court, on an ap-
plication Of the government. of Judgment
OF the circuit court Of appeals in Grim
inal case by which writ of error or the
defendant is sustained and disposed or by
reversing the judgment and sentence OF
the trial court"
1t Is contended that in a case of this
character writ of certiorari Is equlva-
lent to a writ of error. and that the
policy of the law is against the review OF
criminal case at the instance OF the gov
eminent"
Tried to Discover Legal Rate.
Much of the brief is technical in charac-
ter. There are occasional passages. how
ever, which depart from that characterize
ton.
1t is pointed out that 6 cents was the
lawful rate on petroleum for all Ship
ments from Chicago to East st. Louis,
except from stations at East chicago,
Hammond, Indiana Harbor and Whiting
or other suburban switching points In
Indiana From these points, the govern
ment contends. the railroad was required
to charge IS cents per hundred. or three
times the Chicago rate, and that there
fore the Standard Company. which ship
ped from the suburb OF Whiting at the
Chicago rate, was properly mulcted
by the district court in the sum OF SO,
OOO. 600 for not shipping at and paying
a prohibitive rate Of three times as much
as the Chicago rate
1t is contended that the effort was
made on behalf Of the Standard Company
to discover the legal rate. 1t is urged
that the company should not be held re-
sponsible for its failure in that respect.
Objection to Moral Aspects.
Continuing, the brief says:
Counsel as we'll as the trial court have
overlooked the obvious consideration that
the controlling purpose of the acts to
regulate commerce is to promote and
facilitate commerce and not to hamper
or destroy it.
Counsel argue the construction Of the
Elkins amendment as if Congress in pass
ing it regarded the shipment of commod-
tiles in interstate commerce as fraught
with evil or danger to the safety or NOR
ais Of society, and that it was therefore
to be burdened with penal restrictions.
and that shippers are to be held to a rule
Of diligence in knowing that the rates
at which they ship are the current, law
full filed and published rates. such as
has been in extreme cases applied to
dramshop keepers selling liquor to minors
or druggists selling poisons.
III shippers were required to carry on
business under such q rule as to diligence
or the equivalent of knowledge at the
risk Of criminal prosecution and severe
penalties interstate commerce would be
greatly restrained and diminished, II not
destroyed. What is said in the opinion
of the circuit court of appeals is apt on
this question"
Personal Discretion Of Court.
Referring to the governments conten-
ton that the district courts assessment
OF penalty was in the proper exercise OF
the personal discretion of it's presiding
judge (Mr. Landis>. the brief declares:
This Is a discovery which has been
left to the learned counsel for the gov
eminent to make at a very late date in
the history of our jurisprudence.
ut had always before been regarded"
the brief proceeds. "as settled that the
discretion committed by law to the judge
was a judicial discretion and not per-
sonal discretion. and that the exercise OF
judicial discretion by trial court was
| subject TO review for its abuse, ard that
the provisions OF the eighth amendment
to the Constitution, forbidding the imposi-
ton of excessive fines, is binding upon
trial judge, and that the imposition of
an excessive fine in violation of that pro-
hibiton is an abuse of discretion which
is renewable.
This view-that the trial judge exer-
cised a personal power, and discretion
was apparently shared by the learned dis
trict judge himself. and the record and
judgment Of the trial court affords a
striking demonstration Of the wisdom OF
the rugged barons who wrested Magma
Charta from King John and of our an
cestors II. Embedding it's sanctions in the
bill of rights in our Constitution"
In conclusion it Is urged that the grant
Ing of the writ would not be justified.