The Washington herald., 1911-01-05

The, first case before the Supreme
Court of the United States to disclose the
| extent Of the operation Of the Sherman
antitrust law as q criminal statute was
filed yesterday in the form Of a petition
| for a writ Of certiorad submitted by ex-
Senator John c. Spooner. as attorney for
Edmund S. Nash and others, who were
convicted on an indictment for con-
spiracy under the Sherman law.
! The petitioners, Edmund s. Nash.
Spencer p. Shotter, J. F. Cooper Meyers,
George Meade Boardman. and Carl Null
| ler, were indicted in 1905. together with
certain corporations, for a conspiracy in
connection with the sale Of naval stores.
The defendants were found guilty on
certain counts. and the case was ap-
pealed to the United States Circuit Court
Of Appeals. which affirmed the convic.
| ton on November g, 1909
A petition for a rehearing was filed
last December and this being denied, the
Spooner. asked for a writ of certiorari
| to have their conviction reviewed by the
Supreme Court.
In his brief Mr.. Spooner calls atten-
ton to the need of an authoritative and
calculating decision. particularly as to
the penal provisions of the Sherman
antitrust law. He cites the fact that,
with the exception Of the Kisseli case.
growing out Of the sugar trust frauds.
which involved the statute of limita-
tions. no criminal case based on this
statute has ever been before this court
First Conviction OF Kind.
The statement also is made that no case
except that Of the United States against
the Union Pacific Coal Company. report
ed in 173 Federal Reporter, no case in
volving the penal provisions Of this stat
ute has ever been before any United
States Circuit Court Of Appeals. The
petitioners. Shotter and Myers, are the
first men sentenced to imprisonment for
violation Of the statute whose case has
ever come before the Supreme Court.
Ex-senator Spooner. in his brief in
support Of the petition. points out that
despite the fact that the Sherman act
has been upon the statute books for
twenty years without amendment, 1t may
be safely said that the inferior Federal
courts and the bar. and those engaged in
trade and commerce, are in distressful
doubt as to the true scope and construc-
ton Of the act, and as to what may or
may not be lawfully done without violat-
ing its provisions
The fact is pointed out that while an
appeal is provided to the Supreme Court
in civil causes arising under the Sher-
man act. no such right exists under
the statute as to criminal causes" Mr..
Spooner points out that unless a review
is granted it would appear that mere
property rights are treated as being Of
more importance than the liberty Of the
citizen"
In the naval stores cases certain officers,
including the petitioners for the writ of
certiorari, connected with the naval stores
company were found guilty of col-
spiracy upon testimony that certain en-
ployes OF their corporation ''swindled and
cheated customers in another State, in
certais isolated cases. by falsely labelling
and falsely measuring goods. 1t was not
shown that the officers of the corporation
had any knowledge of the frauds. MIR.
Spooner observes that IL isolated viola
tions of State Law, standing alone. war
rant a conviction for conspiracy under
the Sherman act" then the case raises
the suggestion whether the Sherman act
has transformed crimes against the sew
eraI States into crimes against the ma
tion"
The point is made that the Sherman act
does not contain what is within the
authorities and upon general principles an
adequate description of any criminal Of
fense.
Petition Arouses Interest.
1t is maintained in the petition filed
by Mr.. Spooner that the indictments
charge no offense against the United
States. because they do not set out 'any
act" to affect the object Of the con-
spiracy. He maintains that it is neces-
sary that it should be finally settled by
the court whether an illegal intention
or agreement not followed by any act to
carry it into effect constitutes q crime"
under the Sherman act.
The filing of the petition for the certi-
orari aroused the keenest interest around
the Supreme Court and among the law
officers of the government yesterday. The
General has recently decided to
rely upon the penal provisions of the
Sherman act to punish offenders.
In the beef trust cases in Chicago the
civil suits were dismissed. and the gov
ernment has decided to press the criminal
cases. A similar attitude has been as
sumed by the Department of Justice in
the bathtub trust cases. In view Of the !
new policy of the administration to put |
the offenders in jail instead Of subject |
ing them to fines. the move by ex-Sena- |
tor Spooiler on behalf of his clients to |
Test the constitutionality Of the criminal |
provisions of the statute is considered as |
I most significant step, and the action |
lf the SuDreme Court on the petitiOn