New-York tribune., 1908-07-23

or loss than such established and published rate.
arIs ,stnr M rhp situation to which the Law rela-
tfves thus bcund-bound at his peril unoeT t Lns
law intended TO promote commerce-to cipnel
ont before he can safely put anything that ne
has into commerce ali the confusing papers ana
Nr1,res that generally make up a tariff sheet'
Plainly not. IL seems 10 us
COURT CITES AUTHORITY.
In support of this contention the court cites
bishops new criminal law. Section 2s6, and con-
tfnues;
Though il is true that large shippers like the
plaintiff in error do not usually take the W. N,gra
of a carrier as to what the rate is, but eNanns
for themselves the tariff sheet. ana nane nt ai.
knowledge that is necessary to an inte.tiEe -
examination from which II might easily iolsom
that professions OF ignorance on the part
OF such shipper would stand on different pane
from the ordinary shipper II does ,t,or, not on
that account follow that the ultimate Quesuoh
OF intent is not the same whether tiie
shipper be large one or a small one. lor s,n .4v
law is the same for all shippers, ana tne uu.s i
devoving on the government is the san, aoor n
That before conviction there must De prooi y. %
all the facts upon which the shippers orehce is
predicated .,.,.s
the offence makes il plain that the trlai coIi i
was In error. a matter OF law, III tI,o aSl .
cation TO the of the shipper OF I, ,.s p na
ciples that the trial court applied In tI,s s, :,
And this error Is made ell the palmer niHns
from what otherwise might De conslue, , W ~
mere technical error to the level or q feai SUI
s,antfal error when the exact nature of the So
called tariffs published and filed, reiieo upon '
the government as the lawful rate, are scTutl
nized and when the rate that the riat -, 80,
6eciphered out of these papers is compared WIZ,
admitted rates on other roads Tor Ihe sathe tt
product and with the admitted rates on lnt t
came road for a like product. The tarin sheet
relied upon the lawful published rate nieu
with the Interstate Commerce CoIllsit a e. Jo,,is
tariff sheet No. "a of the Chicago ana 81 iIouis
Traffic Association and the first thing TO De
noted is that this tariff sheet makes no reIei
ence nv name to petroleum the products OF
ON fba fac of that tar1lI SneeI no
ls-cent rate for petroleum or the products Oh
petroleum appears. The 1S-cent rate WAS ohE
arrived st hy q process of certain clrcumlocu-
tions. that is 10 saw on the face or these tarlli
sheets there found printed nne GoVeineu
by Illinois classification except as noted herein
then hv turning TO q classification adopted py
the Railroad and Warehouse Commission OF
Illinois September Z, 1893, 1t was FOUND that
petroleum and its products We're ser cow LOW ~
tariff sheet No. "a. it found that the rate
set down for the fifth class was is cents nun.
dred mounds And so, out of this process OF
reference and oss-reference. the lawful pub
lIshed rate was evolved by the trial court TO be
IS cents. not because it so appeared on the face
of the tariff sheets but because by reference 10
other sheets-eheets fixing, not rates. but classl-
fications and that not by the Interstate Com
merce Commission, or the carrier but py the
Illinois Railway Commissioner could be SO
figured out
The co,,rt remarks on the number of nice Judi
cial Questions raised in the case, and declares
that the court is not prepared to say that tarln
sheet "a really fixes the rate on petroleum ana
its products at IS. cents. "The most we can
saw" the opinion reads. as that the question
IS one upon which Judges after full discussion
might very reasonably disagree" It continues:
The error of the trial court in taking away
from the plaintiff in error its right to submit
TO the fury the whole question of whether 1t had
knowledge Of the tariff sheet from which 1t is
said to have accepted "a concession. and there
fore with intent 10 violate the law-whether the
vaoTd in
IL was the lawful rate-is an error tnat rises
into of solid substance
THE NUMBER OF OFFENCES.
Taking up the question as to whether each
shipment constituted a separate offence, by
which Interpretation of the law Judge Lands
imposed the largest fine in history on the Stand
ard OIL Company, the court has this to say:
The gist Of the offence is the acceptance of a
concession, irrespective Of whether the property
involved carloads, trainloads or pounds.
Has a shipper fully and finally accepted con-
cession when he has done nothing more than to
agree with the carrier that less than the pub
lfshed ami filed rates shall be paid the
that the transaction be closed by actual payment
OF the lower rate? In the rebate the
TO the carrier and afterward received back a
part. Manfestly the offence of accepting a
rebate has not been committed until the shipper
has taken back part of the first money where
by his property has been transported at less
than the lawful rate Proof that he agreed to
accept a return OF part of the full rate
stopping there-wOuld not support an indictment
for accepting a rebate. Such an agreement is
not binding; and at any time before its complete
conclusion the shipper may repent and insist
upon the carrier keeping the whole amount. The
concession differs from the rebate only in this:
That in the concession the shipper, instead of
paying the full rate and receiving back part,
merely settles for the difference. The result Is
the same-the property Is transported for the
same amount less than the lawful rate. And
haG In hn1f
in the of accepting concession the trans
action is consummated, and the door of repent
ance is closed, at any moment earlier than in
the case OF accepting a rebate. So proof that a
shipper has agreed TO accept a concession stop
ping there will not support indict-
ment for accepting a concession until the in
tended wrong becomes an accomplished fact
The number of offences in the present case
should have been ascertained in accordance with
these principles. The measure adopted by the
trial court was wholly arbtrary-had basis
in any intention fixed rule discoverable in the
number of offences seems to have been given a
thought either by the government or the trial
court
LOWER COURT REBUKED.
As to whether Judge Landis, in imposing the
monumental fine, abused the discretion vested
in the court. the courts opinion says:
Briefly stated, the reason OF the trial court for
imposing this sentence was because, after con-
viction and before sentence. it was brought out
that the capital stock of the Standard
Oil Company of Indiana, the defendant before
the court was principally owned by the New
Jersey corporation, a corporation not before the
court-the trial court adding (upon no evidence,
however to be found in the record and upon no
information specifically referred to) that in con-
cessions Of the character for which the defen-
dant before the court had been indicted. tried
and convicted. the New Jersey corporation was
not virgin offender. -
Is sentence such as this sound?
Can a court without abuse of judicial discretion,
wipe out all the property of the defendant be-
fore the court and all the assets to which its
creditors look in an effort to reach and punish q