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VOLUME 8, NUMBER 3
The Commoner.
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DID THUS'fJUDGE READ THE RECORD IN A TWENTY-NINE MILLION
Although Judgo Grosscup, in his opinion
for tho court of appeals, assumed to rcvorso a
Hno of $29,240,000 which had boon imposed by
a judgo who had heard all tho evidence, and
although in delivering his opinion Judge Gross
cup took occasion to glvo Judgo Landis a sevoro
scolding, it Is now made plain that Judge Gross
cup did not oven take the trouble to thoroughly
study tho caso.
In order that Commoner readers may bet
ter understand tho blunders mado by this fed
eral judgo who, in deciding for the Standard Oil
trust, bitterly criticisod a faithful judge, an art
icle published In the Chicago Tribune (rop.) is
hereinafter reproduced. Read it carefully:
THE STANDARD OIL CASK RE VIEWED BY
A LAWYER
In his opinion in tho Standard Oil caso
Judgo Grosscup makes the following statement:
"Wo shall take up these subjects in the
order stated, the first being whether a shipper
can, without error, bo convicted of accepting a
concession from the lawful published rate, even
though it is not shown, as bearing on the matter
of intent, that the shipper, at the timo of accept
ing such concession, knew what tho lawful pub
lished rate actually was a view of tho law that
is embodied in tho charge carried out in tho
ruling excluding certain proffered testimony, in
cluding that of one Edward Bogardus, - Zio, be
ing in absolute charge of tho traffic affairs of
plaintiff In error during the period covered by
the transactions, offorod to testify that during
that period ho did not know anything about an
eighteen cent rate oyer tho Alton railroad,;; that
Jils attention had novor boon caljedv to any such
rate by any porspn or by the examination of any
.document; and that it was his understanding
and belief, based on what he was told by one
Hollands, tariff clerk for the Alton railroad,
that the rate over the Alton road was six, cents,
and that such rate had been filed with the in
terstate commerce commission."
On pages 422 and 423 "of the record there
appears, with reference to the testimony of Ed
ward Bogardus the following: , , ,,
"Tho witness, in response to questions by
counsel for tho defendant, was permitted by the
court, ovor the objection of counsel for the
United States that the evidence was incompe
tent, irrelevant and immaterial, and merely the
conclusion of the witness and not tfie facts to
testify as follows:
"During the years I have mentioned 1901,
1902, 1903, 1904 and 1905 -I did not know
anything about an eighteen cent per hundred
rate on oil over the Chicago and Alton railway
between Whiting and East St. Louis in any tafiff
whatever. My attention had never in any way
been called to such a rate by any human being
or by tho examination of any document of any
kind or character, or otherwise. During tho
period of time mentioned it was my understand
ing and belief that this six cent rate regarding
which I have testified, was filed with tho inter-
Estate commerce commission; that understanding
and belief was based on what I was told in tho
Chicago and Alton office by Mr. Hollands. Dur
ing all that period of timo in connection with
the shipment of oil over the Chicago and Alton
railway by the Standard Oil company of Indiana,
as its representative in that particular work, I
had no intention to violate any lawfully estab
lished rate of tho Chicago and Alton railway
company. Turing all that time I believed abso
lutely that I was shipping tho oil under a law
fully established and filed rate issued by the
Chicago and Alton railway company."
It will thus be seen that tho reversal of
tho case, so far as it involves the rulings of
J,udge Landis on tho question of tho knowledge
of the shipper, proceeds upon an absolute mis
apprehension of the evidence actually introduced
at the trial. Bogardus was permitted to testify
that ho did not know that eighteen cents was
tho lawful rate, that his attention had never
been called to It, that ho Relieved that six cents
was the lawful rato, and that he had ho inten-
tlon to violate the law. Thiu testimony,' to
gether with all the other evidence was submit
ted to tho jury and yet in the face of it the
company was aujuagca guilty.
"""W " " wiw minium on mo ques
tion of knowledge, reference is made to tho de
cision of the supreme court of the !' "United States
Mn tho Armour Packing company case. The caso
is-cited by Judge Grosscup with the inference
that the supreme court had held1 "that it was
necessary, in order to convict a shipper, to show
DOLLAR LAWSUIT?
that the shipper had actual knowledge of tho
elements constituting tho lawful rate. What tho
supremo court, in fact, said was:
''While intent Is in a certain sense essential
to tho commission of a crime, and in some
classes of cases it is necessary to show moral
turpitude In order to make out a .crime, there
is a class of cases, within which we think the
one under consideration falls, where purposely
doing ti thing prohibited by statute may amount
to an offense, although the act does not in
volvo turpitudo or moral wrong. In this case the
statutes provide it shall be penal to receive
transportation of goods at less than the pub
lished rato. Whether shippers who pay a rate
under tho honest belief that it is tho lawfully
established rate, when in fact it is not, are liable
under tho statute because of a duty resting on
them to inform themselves as to the existence
of tho elements essential to establish a rate as
required by law, is a question not decided, be
causo not arising on this record."
It will therefore be seen that this question
of knowledge, so vitally important to the effi
ciency of the interstate commerce act, was ex
pressly left open by the supreme court. The
statutes provide for tho certification of such
questions to the supreme court. The plain in
ference to be drawn from the language of the
supreme court in the Armour Packing company
case is that when the question of knowledge and
intent in connection with tho application of the
interstate commerce law should arise in a case
pending In a circuit court of appeals, that ques
tion should be certified to "the supreme court
pursuant to statute. It may be pertinently in
quired why that course was not taken in this,
the most important criminal case which has
arisen in the whole history of the interstate
commerce act: Most lawyers who have studied
the Armour Packing company case carefully,
believe that, applying the logic of that case, the
supreme court will hold that there is a duty
devolving on the shipper to inform himself as
to. .what lis the 'lawful rate' a'nd that tho rule
of ''law as, laid down 'by Judge Landis ori that
subject Is the corrected construction of the
statute.
The second point upon "which the judgment
of Judge Landis is reversed was that each sep
arate carload did not constitute a distinct
offense. Judge Grosscup in his opinion holds
that- there could not bo a conviction except upon
the. separate shipments. The fact is that tv
record in the case shows that at the te ' tfe
attorneys for the defendant admitted tnl- there
was no evidence to show that each car did not
constitute a' distinct shipment.
Speaking of the abuse of discretion by
Judge1 Landis in imposing such a large fine,
Judgo Grosscup "states:
"This brings us, then, to the last question.
Did the court, in the fino imposed, abuse its
discretion? The defendant indicted, tried and
convicted, was the Standard Oil company, a cor
poration of Indiana. The capital stock of this
corporation is $1,000,000. There is nothing in
the record in the -way of evidence, either be
fore conviction or after conviction and before
sentence, that shows that the assets of this cor
poration were in excess of $1,000,000. There is
nothing in the record either before conviction or
after conviction and beforo sentence, that shows
that the defendant before the court, had ever
been guilty of an offense of this character."
In the next paragraph, however, there is
the following:
"That under such circumstances the punish
ment would have been the maximum punishment
does not seem possible; for the maximum sen
tence, put into execution against the defendant
.before the court, would wipe out, many times,
and- for its first offense, all the property of the
defendant. Put into execution, thlB maximum
sentence would add tdthe liabilities oft defendant
to''its creditors and, according to the petition
of the government onuthe matter of supersedeas,
there were current liabilities of from $3,000 -000.
to $5,000,000,, Jan additional liability of
$29,240,000, resulting, without doubt in a, con
dition of bankruptcy that would deduct from
tevory creditor's share of the asets to (be. divided
a sum running from fifty to nearly one .hundred
per cent of the money that such creditors had
advanced. Is the' defendant to be thus pun
ished"? Are the creditors to be thus punished?"
In assailing the size of tho fine on the
ground that creditors should be nrotentAri i
circuit court of appeals resorts to the petition
filed in that court containing a statement by tho
Standard Oil company of Indiana with referenco
to its gross assets, liabilities, and profits. In
that very statement it appears that the gross
assets of the Standard Oil company of Indiana,
the defendant in the case, was $27,502,089.80
and that the profits of its business for the three
years during which it had committed the viola
tions of tho interstate commerce act for which
it -was convicted amounted to ihore than $23,
000,000. If it was proper for the circuit court
of appeals to consider this petition for the pur- ,
pose of assailing the fino on account of the Ha
billtles of the Standard Oil company of Indiana,
was it not equally proper for the court to havo
taken it into consideration for the purpose of
determining tho assets of the company and tho
profits of its business with a view to determin
ing whether or not there wa- an abuse of dis
cretion by the trial judge?
The opinion contains the following:
"Would a cab driver, convicted of violating
the city law against excessive cab fares, be sen
tenced to pay a fine that would take his horso
and cab, and then leave him a bankrupt many,
times over, unable to pay anything but the least
proportion of his debts to his other creditors?"
Suppose a cab driver had committed a largo
number of violations of the city ordinance and'
was called to account for it and punished, could
the fact that the aggregate of the fines imposed -uppn
him exceeded the value of his horse and'
cab be asserted successfully in any court in sup
port of the proposition that the punishment was
cruel and unusual and a violation of his const!-
tutlonal rights? To state the question is to s
answer it. " s
In the opinion of the circuit court of ap- "
peals there is the following:
"Briefly stated, the reasorf of the trial court
for imposing this sentence was because, after
conviction and before sentence, It was "brought V
out, on an examination of some of the officers '
and stockholders of the Standard Oil company,
of. New Jersey, that the capital sock of the
Standard Oil company of Indianatne defendant
before the court, was principally owned by tho '
New , Jersey corporation, a cprppratipn not be
fore the court the trial court adding '(upon no
evidence, however, to be found in the record, .
and upon no information specifically referred to)
that in concessions of the character for whioW
the defendant before the court had been in
dicted, tried and convicted, the New Jersey cor
poration was not a 'virgin offender."
It will thus be seen that the statement Is
broadly made that Judge Landis assumed to
fine -the Standard Oil company of New Jersey
and not the Standard Oil company of Indiana.
The fact is that in the foregoing portion of th
opinion of the court of appeals there Is a mis
statement of what Judge Landis in fact said oa
this subject. "What he did say is as "follows:
"Of course, on the trial of a defendant for.
a specific offense, this presumption is indulged
in favor of that defendant as to that offense,
but where, as in this case, the crime charged,
was the acceptance of a preferential railroad
rate, in violation of a law that had been on the
books for nearly twenty years; where during a
period of eighteen months 1,900 carloads off
property were shipped at an unlawful rate,
which amounted to but one-third of the rate
available to the general shipping public; where
the convicted defendant's -transportation affairs
were in the charge of an expert traffic official
of at least ordinary intelligence and many years'
railroad traffic experience, and who was a fre
quent visitor at the general freight office of?
the railway company; where tho unlawful rate
was shown only by a paper appearing on its face
to be a special billing order, and which directed'
that settlement for services rendered at the rate
which it authorized should be made through the
railway company's auditor's office instead of at',
the railway station or freight office, as is done
by the 'general shipping public; and where the
defendant when brought to trial persistently
maintains that the constitution of the United
States guarantees to it the Tight to make a
private contract for a 'railroad rate, this court
is obliged to confess that he is unable to in
dulge1 the presumption that1 in this case the de
fendarit was convicted of Its virgin offense." I
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,,', In. ho place In Judge Landis opinion did he
say that he was fining the Standard Oil com
(Continued on Page 5)