The sun. [volume] (New York [N.Y.]) 1833-1916, 1911-01-05
TO TEST THE SHERMAN LAW
FIRST CASE or ITS KIND ne
FORE THE SUPREME COZ mr..
Ex-senator John 4. Spooncr. In Behalf
Of Ills Clients. Seeks All Eiucidat ting
Decision on the ConstitutiOnaIity of
criminal Provisions Of the Law.

! Decision on the ConstitutiOnality Of
criminal Pro, isions Of the Law.
| WASHINGTON, Jan THE first case
before the Supreme Court of the United
| States to disclose the extent of the
operation of the Sherman antitrust Law
IA II criminal statute was filed to-day IN
the form Of n petition for "a writ of certi-
, orari submitted by ex-senator John e.
! Spooner IA attorney for Edmund y Nash
and others who were convicted on an
| Indictment for conspiracy under this law.
The petitioners. Edwin =. Nash. Spencer
y. Shotter. j j. Cooper Meyers, George
Meade Boardmnn and Carl Muller, were
indicted in 1905. together with certain
! corporations, for u conspiracy III con-
! nection with the sale of naval stores
! The defendants were found guilty ON
certain counts, and the case was appealed
to the United States Circuit Court of
| Appeals. which affirmed the conviction
on November 20. 1909
! A petition for rehearing was filed last
/ December, and this being denied the
petitioners through ex-senator Spooner
asl ed for n writ of certiorarl to have their
conviction reviewed bv the Supreme
| Court
In his brief Mr.. Spooner calls attention
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 kissell case. growing
out of the sugar trust frauds. which in
! vOlved the statute of limitations, mo
criminal case based on this statute has
! h,E,r., tht.. ha
ment is also made that no cas- = except
that of the United States against the
! Union Pacific Coal Company. reported in
- Federal Reporter, involving the penal
provisions of this statute has ever been
before any United States Circuit Court OF
Appeals
The filing of the petition for the GER
| iiorari aroused the keenest interest around
the supreme Court and among the law
| officers of the Government to-day. The
Attorney General has recently decided
! TO rely on the penal provisions Of the
, sherman act TO punish offenders.
In the beef trust cases in Chicago
the civil suits were dismissed and the
! Gove-nin-n; ha, decided To press the
criminal cases A similar attitude has
been assumed 10y the Department of
Justice in the bathtub trust cases In
view of the new policy of the Administra-
tion to put the offenders in Jail instead of
subjecting them to fines the move by
ex-senator Spooner on behalf Of his
clients to test the constitutionality of the
criminal provisions of the statute is con-
sidered as most significant step. and the
action of the supreme Court on the
petition will be watched with kcenest
interest
Ex-senator Spooner in his brief in sup
port of the petition points out that
| despite the fact that the Sherman act
has been on 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
"a to the true scope and construction of
the act and as to what may or may not be
lawfully done without violating it's pro-
visions
Attention is called to the pending cases
against the Standard Oil and the tobacco
trust, which are to be argued in "A few
days, and Mr.. Spooner observes that
while this case raises novel questions Of
law not involved in either the Standard
OH or tobacco cases. nevertheless a re-
versal on the merits in either of those
cases would almost certainly show that
the petitioners We're wrongly convincted"
The fact is pointed out that while an
appeal is provided to the Supreme Court
in civil cases arising under the Sherman
antitrust act no such right exists under
the statute as to criminal causes" Mr..
SpOonsr continued that unless a review
il granted II 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
Certorari connected with the naval
stores company We're found guilty Of a
conspiracy on testimony that certain
employees Of their corporation "swindled
and cheated customers in another State
ia certain isolated cases. by falsely label
ling and falsely measuring goods" IL
was not shown that the officers of the
corporation had any knowledg. of the
frauds.
! Mr.. Spooner says that i: isolated
violations of State law, standing alone.
warrant "a conviction for conspiracy
under the Sherman act o" then the cas.
rases'the suggestion whether the She
man act has trans/,rmed crimes against
the several States into crimes against
tn. nation.
The point is made that the Sherman act
does not contain what Is within the ATE
thoritie- and upon general principles an
adequate description of any criminal
offence"
1t is maintained III the petition filed l,y
MIR. Spooner that the Indictment. charge
no offence against the United STATES be-
cause they do no. set out any act" TO
effect the object of the conspiracy. He
maintains that II Is necessary that il
should be finally settled by the court
, whether an Illegal intention or agree
nent not followed by an act to carry il
into effect constitutes "A crime" under
the Sherman act.
Movements OF Naval Vessels,