United States v. Gulf Refining Co 15 16, 1925

• Decision Date: 01 June 1925
• Docket Number: No. 40,40
• Parties: UNITED STATES v. GULF REFINING CO. Argued April 15-16, 1925
• Court: U.S. Supreme Court

268 U.S. 542

45 S.Ct. 597

69 L.Ed. 1082

UNITED STATES

v GULF REFINING CO.

No. 40.

Argued April 15-16, 1925.

Decided June 1, 1925.

Mr. James A. Fowler, of Knoxville, Tenn., and The Attorney General, for petitioner.

[Argument of Counsel from page 543 intentionally omitted] Messrs. R. L. Batts, of Austin, Tex., James B. Diggs, of Tulsa, Okl., and Frank M. Swacker, of Washington, D. C., for respondent.

Mr. John F. Finerty, of Washington, D. C., for Director General of Railroads.

Mr. Justice BUTLER delivered the opinion of the Court.

Respondent was convicted in the District Court for the Eastern district of Oklahoma on 99 counts, charging that it received concessions and discrimination in rates on gasoline shipped by the Gypsy Oil Company between December 2, 1916, and March 12, 1919, from Keifer, Drumright, and Jenks, Okl., to defendant's refinery at Port Arthur, Tex., in violation of the Elkins Act of February 19, 1903, c. 708, § 1, 32 Stat. 847, as amended by the Act of June 29, 1906, § 2, c. 3591, 34 Stat. 584, 587 (Comp. St. § 8597). The Circuit Court of Appeals reversed the judgment and remanded the case, with directions to grant a new trial. 284 F. 90. This court granted a writ of certiorari. Section 240, Judicial Code (Comp. St. § 1217), 262 U. S. 738, 43 S. Ct. 524, 67 L. Ed. 1208.

Defendant, insisting that this court is without jurisdiction, made a motion to dismiss th writ. The determination of the matter was postponed to the hearing on the merits. In United States v. Dickinson (1909) 213 U. S. 92, 29 S. Ct. 485, 53 L. Ed. 711, it was held that certiorari could not be granted in a criminal case at the instance of the United States. Act of March 3, 1891, c. 517, § 6, 26 Stat. 826, 828. But that act was modified by the Act of March 3, 1911, c. 231, § 239, 36 Stat. 1087, 1157, being section 240, Judicial Code. which is as follows:

'In any case, civil or criminal, in which the judgment or decree of the Circuit Court of Appeals is made final by the provisions of this title, it shall be competent for the Supreme Court to require, by certiorari or otherwise, upon the petition of any party thereto, any such case to be certified to the Supreme Court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the Supreme Court.'

The words italicized above were added to the provisions of the act of 1891. The phrase 'upon the petition of any party thereto' is not limited by the context. The language, circumstances, and history of the elactment make clear the intent of Congress to give this court jurisdiction on the petition of the United States to bring up criminal cases on writ of certiorari. See 46 Congressional Record, pp. 2134, 4001. And the petition may be granted, notwithstanding the Circuit Court of Appeals remanded the case for a new trial and did not render a final judgment therein. American Construction Co. v. Jacksonville Railway, 148 U. S. 372, 385, 13 S. Ct. 758, 37 L. Ed. 486. Forsyth v. Hammond, 166 U. S. 506, 513, 17 S. Ct. 665, 41 L. Ed. 1095. The motion to dismiss the writ is overruled.

The Circuit Court of Appeals said (page 102):

'It is our opinion that when all competent and relevant proof in the case is given a fair and impartial consideration the conclusion that the verdict is without support, is inevitable,' and held that the District Court erred in denying defendant's motion that a verdict be directed in its favor. The United States asserts that this was error.

The pertinent language of the act, defining the offense charged, is as follows:

'* * * It shall be unlawful for any * * * corporation * * * to solicit, accept or receive any rebate, concession, or discrimination in respect to the transportation of any property in interstate or foreign commerce by any common carrier * * * whereby any such property shall by any device whatever be transported at a less rate than that named in the tariffs published and filed by such carrier * * * or whereby any other advantage is given or discrimination is practiced.' 34 Stat. 587 (Comp. St. § 8597).

The gist of each count is that the Gypsy Oil Company delivered gasoline to interstate carriers by railroad at places in Oklahoma—Keifer, Drumright, and Jenks—for transportation to Port Arthur, Tex., there to be delivered to defendant; and that defendant knowingly did accept and receive from the carriers a concession or discrimination in respect of such transportation, whereby the property was transported at a rate substantially less than the lawful rate for gasoline. It is not alleged what defendant represented the commodity to be or what, if any, tariff, was applied. It was shown at the trial that all shipments referred to in the indictment were made as 'unrefined naphtha,' under tariffs specifying rates therefor substantially lower than the contemporaneous rates on gasoline between the same points. The rates then in force from Keifer are illustrative. They were 'Oils: Petroleum Oil and its Products * * * listed under the head of 'Petroleum and Petroleum Products," 39 cents per 100 pounds; 'Gasoline in tank cars,' 33 cents; and 'Unrefined Naphtha in tank cars' 19 1/2 cents.

Where a commodity shipped is included in more than one tariff designation, that which is more specific will be held applicable. U. S. Industrial Alcohol Co. v. Director General, 68 Interst. Com. Com'n R. 389, 392; Augusta Veneer Co. v. Southern Ry. Co., 41 Interst. Com. Com'n R. 414, 416. And where two descriptions and tariffs are equally appropriate, the shipper is entitled to have applied the one specifying the lower rates. Ohio Foundry Co. v. P., C., C. & St. L. Ry. Co., 19 Interst. Com. Com'n R. 65 67; United Verde Copper Co. v. Pennsylvania Co., 48 Interst. Com. Com'n R. 663. It follows that, if the property in question properly might have been described either as gasoline or as unrefined naphtha, the lower rate was lawfully applied, and defendant was not guilty, and the burden was on the United States to prove beyond a reasonable doubt that the property so shipped was gasoline and was not unrefined naphtha.

The substance of the evidence as to whether the shipments complained of were gasoline or unrefined naphtha is given in the opinion of the Circuit Court of Appeals, and need not be repeated here. The first distillation of crude oil takes off the elements more volatile than kerosene, and these taken together are known as the 'naphtha fraction.' After treatment with sulphuric acid, this fraction is divided by further distillation into three products—gasoline, the lightest, benzine, the intermediate, and naphtha, which is called 'painter's naphtha,' the heaviest. The gravity of such naphtha is around 54 degrees (Baume). Casing-head gasoline is produced by compression of gases which come from oil wells. Like the lighter ends or elements first coming off in the distillation of crude oil, casing-head gasoline is highly volatile and dangerous to handle. Its gravity is about 88 to 90 degrees, and its vapor tension is from 20 to 30 pounds to the square inch. During the period in question some of the painter's naphtha produced at defendant's refinery was shipped from Port Arthur in tank cars to the casing-head gasoline compression plants of the Gypsy Company at Keifer and Drumright, there to be blended—about one part naphtha to two parts casing-head gasoline. The gravity of the product was about 70 to 75 degrees, and its vapor tension less than 10 pounds per square inch. At Jenks, casing-head gasoline was not so blended, but it was subjected to a treatment called 'weathering.' which lowered specific gravity and reduced vapor tension to substantially the same extent as was effected by the blending with painter's naphtha. The shipment referred to in...