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6-cent rate, and paid by the defendant; it being urged that the offense, if any, was committed when the money was paid. But the court is unable to accept any of these theories. The offense was committed when the property was transported at the unlawful rate, and the parties could not limit their liability by entering into an agreement to disregard the law for a long period of time, nor by settling their accounts at stated periods. It is the substance of the thing, and not the mere form, with which the law is concerned. The defendant here is in precisely the same position it would occupy if it had paid the Alton Company at the unlawful rate each time a car was shipped. If none of these theories obtain, it is the defendant's position that the number of penalties should be limited to the number of shipments as distinguished from the number of cars transported; the argument being that, inasmuch as the evidence shows that in many instances more than one car of defendant's property went forward in the same train, it must be inferred that in such cases the several cars constituted one shipment, which the defendant contends is the unit contemplated by the law. However, the course of dealing of the parties seems to forbid the application of this rule. The legal rate was established by the railway company on a car-lot basis. The unlawful 6-cent rate was granted and accepted on this basis, and bills were rendered and paid at that rate per car lot, each car being specifically itemized. Moreover, the mere fact that more than one car went forward in the same train would not require the inference that they were all part of one shipment, any more than would the fact that if a shipment of five cars on one order should happen to be moved in five different trains resolve that transaction into five separate shipments. The proof is silent as to what number of cars, if more than one, constituted shipments on specific orders, no evidence having been offered by either party on that point. Because of this the defendant's counsel urged the court to grant a new trial, the claim then being that such a showing was a necessary part of the government's case. In the opinion of the court, the evidence fully justified the jury in finding the defendant guilty on each of the 1,462 counts.

Respecting the defendant's claim that the representations by the Alton rate clerk had misled it into the sincere belief that the Alton 6-cent rate had been filed with the Interstate Commerce Commission, it is proper to recall here that in the opening statement of its case to the jury the defendant asserted its position to be that under the statute the rate need not be filed to make lawful its acceptance by a shipper. Thereafter, during the introduction of defendant's evidence, and while the court was hearing argument with reference to the admissibility of testimony offered by the defendant as tending to show that the railway rate clerk had represented to the defendant's traffic manager that the rate had been filed with the commission, the court asked defendant's counsel whether the traffic manager was in fact so misled. That gentleman being then in court was called into conference by the defendant's counsel, at the end of which counsel stated to the court that the traffic manager "tells me he assumed that the Alton Company did its legal duty in that regard.” At the conclusion of the argument the court ruled that, inasmuch as the law required the carrier to keep the schedule at its freight office for public inspection, and made it a misdemeanor for the shipper to accept a rate that was not thus published by the carrier and filed with the Interstate Commerce Commission, it was the defendant's duty to make a diligent endeavor in good faith to ascertain at the carrier's office whether the rate had been so filed; that the defendant was chargeable with such knowledge as this inquiry would have disclosed; and that, therefore, evidence was admissible tending to show that the defendant made the inquiry and was misled by the railway company into innocently believing that the rate had been filed, it being for the jury to determine whether such testimony exhibited the truth of the transaction. Thereupon the traffic manager was called to the stand, and testified that on each of the three occasions when he received the special billing order naming the 6-cent rate he had inquired of the rate clerk whether the rate had been filed and was informed that it had been. It was because of these occurrences, some of which took place in the absence of the jury, that the court directed the jury to subject to very careful scrutiny the testimony of the traffic manager and the rate clerk on this subject. If the traffic manager merely assumed the rate had been filed, of course he did not on three occasions specifically ask whether it had been filed. A jury is not required to accept an obviously improbable thing as true, merely because in a lawsuit a witness may testify to its having happened.

In the federal court, on a verdict of guilty, it is the duty of the court to fix the punishment. The defendant having offered certain tariff schedules on the trial as tending to show that during the period covered by the indictment there was available to it and the general shipping public via the Chicago & Eastern Illinois road an open, published, lawful rate of 61/4 cents from Whiting to East St. Louis, which rate it was represented was equal to the 6-cent rate via the Alton road, owing to certain terminal charges to which traffic via that route was subject at East St. Louis, and the court being of the opinion that this fact if true should be considered in mitigation, although inadmissible before the jury on the question of guilt or innocence, the court after verdict directed the production of all schedules bearing on the Chicago & Eastern Illinois rate. From these it appeared that in September, 1895, the Eastern Illinois Company, in connection with the C. C. C. & St. L. and other railway companies, issued and filed with the Interstate Commerce Commission joint tariff No. 7,986. This was a class tariff, and fixed a rate of 18 cents per 100 pounds on oil from Chicago to East St. Louis. On October 9, 1895, the Eastern Illinois Company issued and filed with the Interstate Commerce Commission its commodity tariff No. 8,073 fixing a rate of 614 cents per 100 pounds on oil from Dolton, Ill., to East St. Louis, and providing that out of this rate a switching charge of not to exceed three dollars per car would be absorbed on shipments from Whiting, Ind. July 1, 1903, 60 days prior to the beginning of the period covered by the indictment in this case, the Eastern Illinois Company issued its joint tariff No. 17,679. This general class tariff provided that between Chicago suburban stations, including Whiting, Ind., and East St. Louis, I11., "the current rates in effect from Chicago, Ill., should apply, except on coal, coke, grain, and grain products, lumber, and articles taking the same rates or arbitraries higher, live stock, and hay.” Oil was not included in the commodities thus excepted from these class rates. Among the tariffs specifically named in connection with which this schedule was to be effective were tariff No. 7,986, above mentioned, which fixed a rate of 18 cents per 100 pounds on oil from Chicago to East St. Louis, and tariff No. 24 hereinbefore referred to, to which the Eastern Illinois road was a party, which is described as a tariff on “classes and commodities between Chicago and East St. Louis," and which also showed the rate on oil to be 18 cents.

This tariff 17,679 was distributed by the Eastern Illinois Company to all of its freight agents, and filed with the Interstate Commerce Commission. Its effect was to exhibit to the general shipping public a rate of 18 cents on oil from Whiting to East St. Louis. It was not, however, included among the schedules offered in evidence by the defendant for the purpose of establishing a 614-cent rate on oil.

On July 9, 1903 (one day after this tariff became effective), the Eastern Illinois Company, apparently recognizing that the effect of this tariff was to nullify the 614-cent rate shown by its schedule No. 8,073 effective in October, 1895, issued what it denominated "amendment No. 1 to tariff No. 7,986,” that being the Eastern Illinois class tariff of September, 1895, which had fixed a rate of 18 cents per 100 pounds on oil from Chicago to East St. Louis and which was embraced within the general class tariff 17,679 above referred to. This amendment purported to cancel the 614-cent Whiting-East St. Louis oil rate shown on tariff 8,073 filed with the commission in October, 1895, and named a commodity rate on oil of 614 cents per 100 pounds from Chicago and Dolton Junction, Ill., to East St. Louis. However, this amendment No. 1 was not filed with the Interstate Commerce Commission until March, 1906, one year after the expiration of the period covered by the indictment, and nearly three years after its issue. In view of these facts the Eastern Illinois situation cannot serve the purpose in this case of excusing, or to any extent palliating, the defendant's acceptance of the unlawful Chicago & Alton 6-cent rate.

For the guidance of the court in determining the penalty to be fixed in this case, the court requested counsel to furnish information as to what, if any, corporation held the stock of the defendant Standard Oil Company of Indiana, what the outstanding capital stock of such holding company was, and what its net earnings and dividends were for the three years covered by the indictment. This information which the court deemed it to be his duty to obtain in order that he might advisedly exercise the discretion required by law in fixing the punishment, the defendant's counsel, after deliberation, refused to give. The court, therefore, caused subpoenas to be issued requiring the presence here of the principal officers of the Standard Oil Company of Indiana and the Standard Oil Company of New Jersey. Defendant's counsel thereupon applied to the court to recall these subpoenas, representing that such principal officers were not in possession of the information sought by the court, and suggesting that the subpoenas be limited to a certain person who, it was stated, had the information, and whose name counsel offered to give to the

court. In

response to the court's inquiry, however, as to whether such person would testify or refuse to answer, should this course be adopted, the statement was made that he might decline to answer on the advice of counsel. Therefore, being of the opinion that if there was to be such refusal to testify it ought not to come from some subordinate selected by the defendant for that purpose, the court declined to recall the subpoenas. Accordingly, they were duly served. On the examination of the president and secretary of the Standard Oil Company of New Jersey, it appeared that a very large proportion of the stock of the defendant Standard Oil Company of Indiana was held by individuals for the stockholders of the Standard Oil Company of New Jersey; that the outstanding capital stock of the Standard Oil Company of New Jersey was approximately $100,000,000; that the annual dividends of that company during the three years covered by the indictment were approximately 40 per cent.; and that its net earnings for the period mentioned were approximately $200,000,000. It also appeared from a certified copy of a resolution of the stockholders of the Standard Oil Company of Indiana increasing its capital stock that of its million dollar capital all but four $100 shares were owned by what is called “Standard Oil Trust.”

The enforced attendance and testimony of these witnesses was resisted as extrajudicial and unwarranted. The rule governing the proceeding as found in Bishop's New Criminal Law, Vol. 1, $$ 948 and 950, is as follows:

“The entire transaction in which a crime was committed may embrace more of wickedness than the indictment charges; or there may be other circumstances of aggravation on the one hand, or of mitigation on the other. Therefore, if the law has given the court à discretion as to the punishment, in pronouncing sentence it will look into any evidence proper to influence a judicious magistrate to make it heavier or lighter.

Or this sort of evidence may be delivered to the jury at the trial if with it is the assessment of the punishment. But we have authority for the proposition that in such a case the aggravating matter must not be of a crime separate from the one charged in the indictment-a rule perhaps not applicable where the court determines, after verdict, the punishment.

This evidence, thus addressed to the discretion of the judge, need not be attended by the formalities required on the main issues before the jury. The court will now, if it sees no reason to order otherwise, listen to ex parte affidavits. And even hearsay evidence, inadmissible on general principles, has under special circumstances been suffered on this issue. A witness may be compelled by subpæna to be present."

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From the defendant's formal refusal to furnish the court with this information subsequently brought out on the hearing the court quotes the following language of counsel:

"I will not be understood as saying that upon the application for judgment upon the verdict either party may not urge consideration which may be fairly made from the evidence introduced before the court upon the trial. And it is proper for the defendant to present circumstances which he could not introduce in evidence upon the trial in mitigation of the penalty. The defendant here reserves its 'rights in that respect, and whenever the question is considered as properly arising in the case, whether now or at some later day, the defendant will be prepared to present such considerations as it may be advised are proper, if there is occasion therefor."

In view of this statement, and at the conclusion of the supplementary examination of the officers of the Standard Oil Company of New Jersey, above referred to, the court offered to hear any evidence that might be submitted by the defendant as tending to show that neither it nor the Standard Oil Company of New Jersey had ever violated the interstate commerce law before, such evidence to be considered by the court in mitigation of punishment.

On the following Monday the defendant's counsel presented to the court its formal reply, denying the propriety of such an inquiry, and declining of its own motion to submit anything. From this document the court quotes the following:

“For this defendant now to assert its innocence of matters that it is not charged with, or attempt to show that it has been innocent of any wrongdoing in connection with matters outside of this record, when there is nothing before the court charging it with such wrongdoing, would present a situation unheard of in Anglo-Saxon jurisprudence. This court, in the absence of anything to the contrary, paying no attention to the gossip of the street or the charges of the mob, and guided by the fundamental law of the land, must certainly presume the complete innocence of this defendant of any prior violations of the interstate commerce law, and fix its penalty, if any, solely upon the record in this case."

And again:

"If the occasion, however, shall ever arise in an appropriate proceeding, where this defendant can, without any waiver of its legal rights or legal status, subject itself to an investigation of the question of its having heretofore violated the interstate commerce law, it will avail itself of that opportunity, and it will certainly appear that since the passage of that law there has been no violation of its provisions by either the Standard Oil Company of New Jersey or by this defendant; but on the contrary it has been the fixed policy of these companies since their organization and the passage of the interstate commerce law to strictly observe not only the letter, but the spirit, of all interstate commerce laws, and that such laws have since their passage met with the entire approval of the administrative officers of these companies.”

Waiving the question of the studied insolence of this language, in so far as it may be aimed at the present occupant of the bench, the court can, of course, only leave to the discretion of the Standard Oil Company the wisdom and propriety of a hundred million dollar corporation gratuitously inaugurating agitation about the "mob.” The point of this incident is that, when in compliance with defendant's previously expressed reservation the court offered to hear evidence going to the question of the Standard Oil Company's prior good behavior, an offer which was announced by the court in the presence of the president, the vice-presidents, and secretary of the Standard Oil Company of New Jersey, their counsel, after conference, declined to present any witness to testify on this subject, choosing rather to stand upon the law's presumption of innocence. 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 20 years; where during a period of 18 months 1,900 car loads of 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 de

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