The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-11-10
Is Denied by the q. s. Circuit
Court of Appeals.
TO HIGHEST TRIBUNAL
Will Attempt to Carry 1t Up on
a Writ of CertiOrari.
Decision as 1t Stands NuIlifieS
Much of RoOsevelt's Work.


petition for a rehearing of the case in
which the United States circuit court
of appeals reversed the trial court in
fining the Standard Oil company of
Indiana $29, ,240, 900 for alleged rebating,
was denied in the court of appeals to-
day. 1t is authoritatively stated that
the government Will now attempt to
bring the whole matter before the su-
preme court on a writ of certiorari.
The government in its petition for
rehearing intimated that if the opin-
ion of the judges of the appellate
Grosscup, Seaman and Baker
were allowed to stand it would nullify
nearly every shred of rate refOrmatory
legislation accomplished by the Roose-
Welt administration. In summing up Its
position, counsel for the government
said that the opinion of the court of
appeals as it stood, enormously stated
material portions of the record; did in
justice to the trial judge, Lands; left
doubtful, in new trial. the rule of
law to be applied both as to knowledge
on the part of the shipper that he was
accepting an illegally low rate; did not
make it clear what was to constitute
one Offense-a trainload, carload, or
a whole series of shipment for which
but one settlement of freight charges
had been made. 1t was further alleg-
ed thet the language of the appellate
judges appeared to be in conflict with
the language of the supreme court and
with language used by the presiding
judge, Judge Grosscup, in previous
similar case. The petition closed with
a statement that if the opinion of the
court of appeals were permitted to
stand unmodified it would tend to en-
courage disobedienCe to law; to i'm
pede the enforcement of salutatory
statutes and largely to defeat their
purpose"
The Courts Opinion.
In overruling the petition the court
said:
The petition for a rehearing ques-
tions the correctness of the text of
that portion of the opinion that relates !
to the judges statement, in passing !
sentence, that he was unable to in !
dulge the presumption that in this |
case the defendant was convicted of |
its virgin offense'-the point of the !
petition being that in the use of the |
word defendant in connection with |
virgin offense' the trial court referred |
to the Standard Oil company of Indi-
ana and not the Standard Oil company |
of New Jersey.
THE trial court in passing SEN
tence expressly stated that the Stand !
ard Oil company of Indiana was the |
nominal defendant, the Standard Oil |
company of New JERSEY being the real |
defendant and every word, almost, of |
the trial court, in arriving at its con-
clusiOn respecting the sentence, re-
lated to the Standard Oil company of |
New Jersey and not to the Standard
Oil company of Indiana, including the
statement that the revenues of the
Offender and the character of the
crime showed that thev had a pecu-
liar relation to each other-the reve-
nueS referred to obviously being the |
revenues of the Standard Oil company
of New Jersey-forty per cent on
500 200, ,000-no revenues of the |
Standard Oil company of Indiana be-
ing in the record at all. And counsel
for the government plant their justifi-
n n hnP f1a oh f,Fl
the revenues, not of the Standard Oil
company of Indiana, but of the Stand
ard Oil company of New Jersey. But
as a suggestion is made that that line
in the text of the opinion be changed
the suggestion will be accepted and
the opinion so amplified that while the
language used to express the point is
changed, the substance of the point
involved Will be more clearly brought
out.
Correctness of the Text.
The petition for a rehearing also
questions the correctness of the text
of that portion of the opinion in |
which dealing with the question
whether shipper is guilty of accept
Ing concession, even though it is
shown that the shipper, at the time of
accepting such concession did not |
know what the lawfully published
rate actually was, the view taken by
the trial court is said to be "a view of
the law that is embodied in the
excluding certain preferred testimony,
including that of one Edward Bo-
garduS'-the point of the complaint |
being that the testimony of Bogardus
as TO whether he knew or did not |
know OF an Is cent rate over the AL
ton road was not excluded Now as
to what physically went into the rec
ORD; BogardusS IS testimony was admit
ted and went to the jury on the issue
adopted by the court whether he had |
made 'diligent endeavor' to ascertain
the rate-an issue wholly different
from the one upon which it was Of
fered. viz: Whether or not defendant
had knowledge of what the lawfully
established rate was. On the latter
issue the testimony of Bogardus was
as effectually excluded by the charge
to the jury as if it had been phvsicaiII,
expunged from the record
Jolt for Bonaparte.
In closing the court of appeals pavs
its respects to Attorney General Bona
parte, special assistant attorney
General Frank B. Kellog, district |
Attorney Edward w. Sims, and spec
ial assistant United States ATTORNEY
James H. Wa1kerson. whose names
were signed to the petition, in the fol-
lowing paragraph:
Courts have the right to expect
that counsel accustomed to practice in
the courts of review, not only know |
the meaning of legal terms constantly
in use in discussions and opinions of
these courts, but will not misuse such |
terms to spread miSinfOrmation re- |
specting a judgment that in the ma
ture of the case, is bound to attract |
germaneness of which the bar of the
country will DerceiVe when We cav tTa+