Omaha daily bee., 1908-11-11
OIL CASE REHEARINC DENIED
United States Circuit Court Of APP
peals Refuses Action.
GOVERNMENT HAS ONE RECOURSE
VIII Take suit TO supreme Court on
writ Of Certiornri-COurt Dis
cusses Language OF the
Petition.

CHICAGO. Nov. 1O-Thc government >
petition for a re-hearing Of the case In
which the United States circuit court OF
appeals reversed the trial court In timing
the Standard oil company of Indiana SS,-
10000, for alleged rebating, was denied in
the court Of appeals today. 1t is authori-
tatively stated that the government Will
now attempt to bring the whole matter be-
for the supreme court on a writ OF certi-
orarl.
The government i'm its petition Tor a re-
hearing intimated that II the opinion OF
the judges Of the appellate court-Grosscup.
Seaman and Baker-were allowed to stand
it would nullify nearly every shred of rate
reformatory legislation accomplished by the
Roosevelt administration.
In summing up it's position, counsel for
the government said that the opinion of the
court Of appeals as il stood enormously
stated material portions of the record; did
Injustice to the trial Judge Uandis); left
doubtful, in a 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 train
load, a carload, or a whole series Of ship
ments for which but one settlement of
freight charges had been made.
1t was further alleged that the language
Of the appellate judges appeared to be in
conflict with the language of the supreme
court and with language used by the pre-
siding judge, Judge Grosscup, in a previous
similar case. The petition closed with a
statement that If the opinion of the court
Of appeals were permitted to stand unmodi-
fled It would tend to encourage disobed-
fence to law; to impede the enforcement
Of s~alutary statutes and largely to defeat
their purpose"
Words of the Court.
In overruling the petition, the court said:
'"The petition for a rehearing questions
the correctness of the text OF that portion
of the opinion that relates to the trial
judges statement, in passing sentence, that
he was unable to indulge the presumption
that in this case the defendant was con-
victed of it's virgin offence'-the point of
the petition being that in the use of the
word 'defendent' in connection with viz
gin offense' the trial court referred to the
Standard Oil company OF Indiana and not
the Standard Oil company of New Jersey.
The trial court, in passing sentence, ex-
pressly stated that the Standard Oil com
pany Of Indiana was but the nominal de-
PENDANT, the Standard Oil company of New
Jersey being the real defendant and every
word, almost, of the trial court. in arriving
at its conclusions respecting the sentence,
related to the Standard Oil company of
New Jersey and not to the Standard Oil
company OF Indiana, including the state
ment that the revenues OF the Offender"
and the character of the crime, showed
that they had a peculiar relation to each
other-the revenues referred obviously be-
ing the revenues Of the Standard oil com
pany of New Jersey-4O per cent on 500,
O~00,OG0-no revenues of the Standard OIL
company of Indiana being in the record
at all.
Respects to Government.
In closing the court of appeals pays its
respects to Attorney General Bonaparte,
Special Assistant Attorney General Frank
b. Kellogg, District Attorney Edward w
Sims and Special Assistant United States
Attorney James II. Walkerson. whose
names were signed to the petition, in the
following paragraph:
Courts have the right to expect thai
counsel accustomed to practice In the
courts of review not only know the mean
ing of legal terms constantly in use In
discussions and opinions of these courts
but will not misuse such terms to spread
) misinformation respecting a judgment that
in the nature of the case, Is bound TO at
! tract wide public attention-a remark tn,
e germaneness of which the bar of the coun
= try will perceive when we say that all tina
I has to be done to obvfate the objection
made is to insert a clause so that the por
$ ton OF the opinion objected to will read
"a view of the law that is embodied in tn
l charge and carried out in the rulings, ex
i Guiding "as a result of the charge on tina
D.. -. - II z-.FF.-,a fnaNf-,n-,y - on, r.
r ward Bogardus'-the capitalized portion be
q ing the only words Inserted"
Opinion AmpIihed.
= In addition to the slight change jus
k made, Judge Baker amplified the origlna
/ opinion by two paragraphs clarifying tn
y courts opinion as to what constitutes
e separate offense and dealing with the gov
ernment's contention that one corporatio
may use another to commit offense. thu
escaping punishment. Judge Baker said:
D The offense of accepting a concessio
is the transaction that the given rebat
Il summates-n the unit Of mere meas
urement of the physical thing transported
lie but the transaction whereby the shippers
d for the thing shipped, no matter how grea
: or how little its quantity, received a rat
different from the established rate - III
wide range between maximum and min
o mum punishment being doubtless though
to be a sufficient range within which I
differentiate the punishment adapted I
one transaction from the punishmer
adapted from another.
X Corporation Mnkeshift.
on the second point Judge Baker said:
True II is that If one corporation use
another corporation to violate law, Just
d II one individual uses another individual
III violate law, such offender ought no
a though masked, to go unpublished. Al
W there are ways, as old as the law itsel
to reach and punish him. But can the 1
e dividual who is merely said to have pr
cured the crime to be committed be d
,r prived Of a hearing-be condemned to pu
Ishment without being tried, convicted
indicted even? Can any Individual mere
said to be behind the party c~onvictt
-, be reached for punishment. not by indie
he ment, trial and conviction in due process