The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1902-08-10
Judge Jones OVerruIeS Demurrer
in Express Co. Suit
MATTER OF LICENSE TAX
Lengthy Opinion Filed on the Line
That Ordinance Imposing Tax Was
Unconstitutional Because 1t Sought
to Regulate Interstate Commerce

Judge Thomas G. Jones of the United
States court has rendered a decision in
the case of the Southern Express COM
pany versus the Mayor and Aldermen
of the City of Ensley. wherein the latter
sought to force the payment of license
of 500 per year from the company. In
this decision the court overruled the de-
murrer of the city and gave 1t thirty
days to answer.
This was a suit by the Southern Ex-
press company to enjoin the enforcement
of an ordinance of the city of Ensley,
passed December 10, 1901, requiring the
payment by the express company of s1OC
a year for a license to do business in the
city, and making 1t a crime to do bust
ness without first paying the license.
The express company which is a Geor-
gia corporation, questioned the legality
of the ordinance and refused to take out
the license. On February 3, 1902, the
agent of the express company was
brought before the mayor of the city
and fined $25. He took an appeal to the
criminal court of Jefferson county This
dpPteNi 10 sun PSbdAitS anu WITCH tht
case Is reached that court and possibly
the state supreme court WI have to pass
upon the validity of the ordinance.
AS alleged in the bill, the mayor of
Ensley was unwilling to await the de-
cision of the criminal court and threat
ened to arrest the agent of the express
company every day until the license was
paid.
On the sth of February the express
company filed its bill in the United
States court, setting out these facts, al
leging that 1t was engaged in inter-s state
commerce; that the ordinance was I'M
constitutional and void as to it, and pray
ing for an injunction restraining the
mayor and city council from inforcing
1t or further molesting the agent of the
company.
To this bill the mayor and council de-
INJURED and contended that admitting all
the facts alleged the injunction ought
not to issue, as the ordinance was a per-
fectly valid and legal exercise of the
power conferred upon the city by its
charter.
In overruling this demurrer Judge
Jones files a lengthy opinion, citing a
great many authorities. He decides that
the ordinance in question is clearly and
palpably unconstitutional as an attempt
to regulate and control interstate COM
merce and cannot be enforced.
There were several oller questions
raised by the demurrer such as the juris-
diction of the Federal court, the power
o. a court of equity to restrain a crimi-
nal prosecution and the like, all of which
were decided adversely to the city.
This decision is very important not
only by reason of the serious questions
involved, but because of its effect on
many of the smaller cities and towns Of
Alabama whose ordinances require the
payment of license tax as prerequisite
to the carrying on of business In such
cities or towns by express companies
and other carriers engaged In Interstate
commerce are substantially similar to
ordinance declared invalid ny this decis-
ion.
london & London represented the ex-
press company and w. ]. Martin, M. =.
Gregg and R. II. Cries the city Of Ems
ley.