The Bon Homme County independent. [volume] (Tabor, S.D.) 1904-1913, 1908-08-27
laid down an exactly contrary rule to the
one which he laid down intthe Standard

hMHM #EarNMft
laid down an cxactiy contrary rule to the
one which no laid down intthe Standard
ease F M
The government contends that the rule
tnsry ag ~ ny Sy D saS foast 81 81 t appf Eisin r. G sst;
and leaves II TO the shipper and carrier to
elect fer how many offenses they will be
prosecuted = how much they shall BIO
fined.
The government contends in the petition
that the court of appeals has don q great
injustice to Trial Judge Lands in misstat-
Ing what he did In connection with h
imposition OF the fine on the Standard Oil
The government claims that the facts
before the court OF appeals Justify the i'm
position OF the penalty inflicted by the
II appears from the record IN the cir.
cult court OF appeals that the net profit
OF the business Of the Standard OH Com
Judge Lands fined. for the years during
which the violations OF the law for which
IT was convicted were committed and In
GLIDING the year In which Il was indicted
Not Too Severe.
The punishment therefore Is no more Sc
we're than hat Is inflicted upon q letter
carrier who steals q letter and Is sent
to the penitentiary for three years, there
by depriying him OF his earning capacity
for that time. 1t Is not nearly so severe
the penitentiary imposed upon a banker
who mlsapplies the funds of his bank.
The government claims that on account
OF the size OF the fine alone. there is no
necessity for a retrial OF the case; that
the circuit court Of appeals may, itself,
name the fine which should be imposed
Il sdheres 70 the view that Judge Lands
abused his discretion In imposing so large
a fine. ana
In Conclusion. f
The petition concludes: =
re is therefore respectfully submitted;
ina the opinion OF this court is based
upon a. misconception of the record with
reference to the rulings of the trial judge
as TO the admission of evidence tending to
show want OF knowledge, n with refer
ence to his construction Of the statute on
tina subject, and the theory on which the
case was tried; that the evidence of Boz
gardus which It Is claimed showed want
Of knowledge was admitted, that 1t was
overcome, however, by the facts n cir
eumstances OF the case, and that the evil
dence as an entirety was sufficient to
show actual knowledge. or what In law
THAT the Interpretation OF the statute
by this court, imposing no duty on the
shipper and permitting q defense OF ignor-
negligence of the shipper, is contrary to
the language OF the statute and to it's
purpose, and seriously impairs the eff
cheney Of the act; Haa# .r.
WI Liza TIC Tulllk bIhlSQ III Tie Opl1lOu
as to the basis for determining the num-
Der OF offenses involves an erroneous con-
struction Of the statute and fails to take
into consideration hat the thing which
Is prohibited by the act Is the transporta-
ton. OF property at the unlawful rate;
That the criticism Of the trial judge for
abuse OF discretion rests upon a wrong
assumption of what the trial judge actual
ly did and assumes that he attempted to
try and punish the Standard OIL Company
of New Jersey, when in fact, as appears
from the record, the entire proceedings
were directed against the defendant the
Standard Oil Company of Indiana; .N,
That the ruling stated In the opinion
to the effect hat a fine Is excessive when
It exceeds In amount the ability OF the
d~efendant to pa - an ~innGvation IN
would prevent the practical enforcement
of most criminal statutes: D.. ." i..
That, In short, the opinion as IL a
t ebeoh Teeor9: s Soes ,n maseE,ei TO P0f the tr, al
judge; leaves doubtful in a new trial the
rule OF law to be applied, both as to
knowledge on the part of the shipper, and
be in conflict with the language of the
supreme court and with the previous an
guage OF the presiding Judge OF this court.
and with the great weight of legal auth
GRITTY; and, If permitted to remain un-
modified, viii tend to encourage disobedi-
enc to law, to impede the enforcement
Of lsalutary statues and largely TO defeat
their purpose. fEaN. f-EE . + arr. r
For the reasons stated we respectfully
request that a r~eargument OF this case be-
granted" T.st..f Ntt'"
The petition Is signed: ~. T.. y.
Charles r.. Bonaparte,
- Attorney General.
Hs Nsr Frank B. Kellogg, Is
Special Assistant to the Attorney Gen
erai. r.t. m, #.-F.a .
.4f Edwin w. Sims, 5"a d.
t rl.t United StateD Attorney.
N.a James II. WiIkerson,
Special Assistant United States Attor-'
ney.