The Birmingham age-herald., 1905-09-21
ID TEST THE MORTGAGE LAW Writ of Mandamus Asked for
 Against Judge Greene FILED IN THE CITY COURT Claims Made That Act Entitled "An Act to Better Provide for the
 Revenue of the State" Is
 Unconstitutional.
FILED IN THE CITY COURT

A petition for writ of mandamus cona- polling Probate Judge Samuel E. Greene to record a certain mortgage, without requiring the privilege tax was filed in the city court yesterday, and on the final decision of the courts rests the con stitutionality or unconstitutionality of what is known as the mortgage law which was passed by the state legislature in 1903.
 The style of the case is the Central Trust Company of New York vs. Samuel E. Greene, Judge of Probate of Jefferson county, Alabama" Judge Greene who is made the defendant in the case, accepted service of the petition and waived the is- suance of a rule nis.
 Attorneys Tillman, Grubb, Bradley and Morrow represent the petitioners. A date for the hearing of the arguments will be set within the next few days. The case promises to excite a great deal of inter- est in legal circles, inasmueh as it ef- fleets the fees that shall be paid on all mortgages filed in the probate courA CT all counties in the state.
  ants applied at the office of the judge of probate of Jefferson county and presented for record a mortgage of the Louisville and Nashville Railroad company to the compainants the amount of the mortgage being $46,S10 42.
 It is further charged that they were told that the fee for recording the mort gage would be $1. 50. It is averred that complalDnts offered to pay that sum, and the further sum of S70.20 was then demanded by the respondent as d privi- lege tax.
 Authority Given.
 It is stated in the complaint that the respondent claimed as his authority for the demanding of the additional tax an act of the legislature entitled An Act to Better Provide for the Revenue of the State" It is averred that the said act is unconstitutional and that it never passed the two houses and is therefore not law in Alabama.
 The act, it is alleged, was known as "House Bill No. 149' and was introduced in the house of representatives on Janu- ary 2l, 1903 It is said in the petition that the bill was referred on the day of it's in troduction to the committee on ways and means, and that committee reported on February 10 with substitute.
 1t is further stated that on February H the house took up the consideration of the bill as a committee of the whole and reported a substitute with an amendment to the bill. The substitute and amend ment, it is claimed, were adopted, and the iz;1
 On the evening of the same day, it is said, the bill was sent to the senate, re- ferred to committee of that body, and on February 25 was reported to the sen ate by the committee. It is alleged that the senate took up the consideration of the bill and made material amendments A conference committee of six, composed of members of the House and Senate, took up the matter and reported to both bodies.
 The petition, which was directed to Charles A. Senn, senior judge of the city court, and Charles w. Ferguson, asso- ciate judge of the same tribunal, closes with the following:
 Part of Petition.
 "Petition therefore ayers that as ap- pears from the proceedings had in the two houses of the legislature above set forth, and the report of the said conference, number of the amendments to said bill made by the Senate were not concurred In by the House, and it nowhere appears from the Senate journal that the Senate receded from the amendments in which the House refused to concur
 And petitioner therefore ayers that the said law never passed the two houses. and is not the law in Alabama.
 ''Petitioners further show unto the court that if petitioners are mistaken in the averment that the said bill never became d law under the constitution of Alabama, then they aver that the said part of said act which said probate judge claims as his authority for refusing to file and re- cord said mortgage, is unconstitution@ hn this:
 T. It controvenes Section 211, Article Il, of the constitution, and that the said act is otherwise unconstitutional.
 ''2. It controvenes Section 232 of the constitution and is otherwise unconsti- tutional
 ..3. It controvenes Section 221 of the constitution and is otherwise unconsti- tutional"
 The petitioner then prays that writ of mandamus may issue out of this court to compell the respondent to admit said mortgage to record upon the payment of the fees allowed by law for re- cording same and relieving petitioner of the payment of said s7O.21 demanded by Judge Greene. As the respondent accept ed the service, the writ has not been issued and the decision of the court will not be made until after a hearing of the arguments.