The Birmingham age-herald., 1911-11-17
PACKERS FIGHT ID
 OBTAIN 4 RULING
 ON HADEAS CORPUS
Both Sides Claim Advant- age at the End of Court
 Session
WILL RESUME THE
 ARGUMENT TODAY
Government Maintains Packers Had No Right to Use Habeas Corpus Writ Because Method of
 Surrender Was Illegal


 Chicago. November 16.-Pitting a ques- ton of fact against question of law and advocating the cause of public wei fare against an allegation of selfish, pe- cuniary motives, lawyers for the indicted Chicago packers today fought govern ment counsel In an effort to obtain a final ruling on the criminal clause of the Sherman antitrust act from the United States supreme court before the packers shall go to trial. The court of United States Circuit Judge Iiohlsaat was the battle ground for the clashing forces of legal wit and experi- ence.
 When the court session ended both sides claimed the advantage. Arguments will be resumed tomorrow morning. The question arose from contention of counsel for the packers that the defend- ants had been under restraint for one | hour last Monday after they had been surrendered by their bondsmen and, there fore, were subject to the operation of | the habeas corpus law.
 
 declared that as question of law the packers had no right to use the habeas corpus writ because their method of sur render was illegal and, therefore, they were not legally under restraint. After they had threshed out these points the lawyers proceeded to portray two widely different purposes, which, they said, actuated the packers in making their petition for the writ of habeas corpus.
 Business Demands Ruling 1 Levy Mayer of counsel for the indicted men, declared welfare of business in all lines demanded the earliest possible rul- | ing from the federal supreme court upon the validity of the criminal clause of the Sherman antitrust act. l Not since the free silver agitation" said Attorney Mayer, 'has the business of the country suffered to such degree l from any one thing as it has from the \ uncertainty surrounding construction of 1 the criminal clause of the sherman act" | James Sheehan of special counsel for 1 the government said the purpose behind the petition of the packers was to avoid. l if possible, the expenses of trial until the or tuS CFiIllndl sec tion of the Sherman act finally had been determined.
 At 10 O clock counsel for the govern ment and the so called beef trust were in court for argument in the habeas cor pus proceedings filed In behalf of nine indicted meat packers and which at tackled the constitutionalty of the crim- inal provisions of the Sherman antitrust law.
 The government forces are on the de- fensive. They were so placed when Judge Kohlsaat granted the order for the writ. The ground gained by coun- sel for the packers in the first move was the cause of hurried gathering of legal talent to protect the federal governments interest
 The governments case was directed by James Sheehan and District Attorney James H. Wilkerson.
 The future trial of the indicted men depends on the action taken by Judge Kohlsaat on the writ. Should the court decide to quash the writ then by provision of the rules of the supreme court he may either remand the in- dicted men to Judge Carpenter for trial in the district court or detain them In the custody of the circuit court until the appeal, which, 1t is assumed, would be made in such an instance is threshed out on the question of the law validity in the supreme court
 According to District Attorney Will kerson, the most complete point in- volved in the proceedings is whether 1t is possible to bring the defendant to trial in the same way and according to the same principles as in the case of ordinary lawbreakers.
 Want Writ Quashed
 The government attorneys asked the court to quash it's writ on the alleged grounds that the packers legally never were surrendered into the custody of the court and for that reason the writ Eof an habeas corups should have been issued District Attorney Wilkerson filed an affidavit to support the mo- ton to quash the habeas corpus writ in which he set forth at some length the technical reasons for the govern ment's motion.
 Attorney Sheehan of special counsel for the government in, the beef case opened the arguments on the motion to quash Eight of the nine indicted packers were present.
 our purpose here is to review the constitutionality of an act on which certain Indictments are predicated," said Attorney Sheehan for the govern ment. T insist that the defendants to have been surrendered legally should have surrendered in open court and not to a federal marshal. TO make such surrender legal the officer must be able to set up in his return that he held these defendants under or by vir- tue of some process which has it's foun- dations in the proceedings at issue. "These defendants surrendered mere- ly upon their own bonds and not upon any process issuing from the honor able court Therefore, l advance that the surrender was Illegal and should [ iod to oh tai n Affidavits Filed Two affldavits were filed by Dis trict Attorney Wilkerson and his aides. The first was by MT. Wilkerson and the second was by Deputy United States Marshal John F. Wolf. Wolfs affi- davit set forth that he informed coun- sel for the defendants at the time of surrender that he doubted the legality of the surrender,
 While Judge kohlsaat was in cham bers reviewing the motion and affi- davits, counsel for the packers care fully went over copies of MT. Will1er- sons affidavits.
 The chief contentious of the gov ernment were that the packers had not acted in good faith in applying to the circuit court and that the circuit court was without Jurisdiction.
 in the afternoon Attorney Miller read into the record the petition to Judge