The Birmingham age-herald., 1906-10-14
City Attorney Finds No Fault With Ruling In the Ex-
 change Cases MAKES PLAIN STATEMENT
 AS TO FUTURE PLANS Is Determined That the Ordinance Shall Be Enforced and Will Seek Positive Evidence for Fu-
 ture Procedure.

| ney, has written lettar 10 mayOr Naiu
 in which it Is stated that the ruling of
 the trial judge was proper and just, l The city attorney states in his letter, l however that the city shall continue to
 proceed against the alleged bucket
 shops until the ordinance, "to further suppress gambling in the city" is car | red out to the letter. Ills plan Is to
 procure positive or oircumstantial evil
 denoe to the effect that deals are made
 in which no actual delivery Is intended,
 and in which a settlement on differences
 is the sole intention.
 The letter of the oity attorney is com l prehensive, and covers the ground thor 1 oughly, agreeing with Judge Feagin in his
 ruling, and setting forth the future policy of the city.
 Mr. Smiths Statement. | The letter of the city attorney, which
 is directed to Mayor Ward is as follows: Birmingham, October 13 1906.
 Hon. George B. Ward, Mayor, City;
 Dear Sir-I see by the papers that Judge
 Feagin has rendered a decision declaring
 unconstitutional sections and of ordi-
 nance No. Il, which was passed for the
 purpose of attempting to suppress bucket
 shops and stock gambling in the city of
 Birmingham.
 | In order that you may fully understand 1 the matter I beg to advise you as foi- lows:
 Section l of this ordinance makes 1t an
 offense to operate place of business for
 the purpose of engaging in business for
 bidden by the ordinance
 Section defines the class of trading
 which is declared to be unlawful, prohib- l iting persons from dealing in futures on
 margins, where an actual delivery of the
 property bought and sold is not contem-
 plated and where there is an intention to
 settle on the basis of differences.
 Section makes 1t an offense to become
 a party to any such contract, directly or
 indirectly, or to participate In any way
 in furthering or effectuating the same.
 Section 4 prescribes that no person shall
 be excused from testifying under any
 prosecution for violation of the ordi-
 nance, but exempts such witness from
 prosecution for offenses testified about in
 which the witness himself participated.
 Thus far the ordinance is valid, and has
 not been questioned in any manner by
 the attorneys for the defense.
 1 The supreme court of Alabama in three
 or four cases have held contracts to be
 void in which there was a dealing in fu- | lures on margins with bona fde in-
 tention of delivery of the property bought
 or sold and where the intention was to l settle on differences, and in the various decsiions of our court on this subject,
 such contracts are characterized as gam | bling of the most pernicious form Bucket Shops Defined. While we know in our own minds or,
 at least. believe, that this form of spec | ulation is very common, and that per | sons in Birmingham use brokerage houses | as a means of carrying on the same, still it is difficult in these cases to get | evidence of the same. each one of the houses operating now in Birmingham seem to ye employing written contracts in their business, which on their face
 show contemplated actual delivery and
 not mere settlement on differences. and | In addition to that each of said houses
 claims not be a bucketshop. but a regu- | lar legitimate brokerage house. | bucketshop Is a place other than a
 duly incorporated merchants exchange, |
 as the same occur, the fiuctuation of prices of bonds, stocks, petorleum cot 1 ton or grains in trades made or offered l to be made on regular and lawful boards l of exchange, and wherein the person car | rying on the bucketshop, either as prn- cipal or agent, pretends to buy or sell
 or goes through the form of buying
 and selling then and there to any person
 or persons any one of said commodities l at a certain price fixed by according 1 to, the aforesaid prices posted or pub | iished. but wherein neither party actual | ly buys sells the same.
 1 bona fide brokerage house is a place
 where an order is booked for stock, ] grains, cotton or other commodities, and | Is communicated to some lawfully or ! ganized board of exchange, where a boni- | fide purchase sale of the said com | modity is made, and the same Is held | subject to the orders of the purchaser; | there being a bonifide intention of mak- | ing an actual delivery.
 Of course. you will understand. that | the bonifde brokerage houses might do l an illegal business, as outlined above, to- | wit: They might take orders and make purchases sales on margins for pre- | tended future delivery. where no actual | delivery is contemplated, but a settle | ment by differences only. Thus you will | see that in order to show a violation of | this ordinance. where an order is booked | and forwarded actually to some lawful | board of exchange it is necessary in 1 each case to show the intention of the parties as that is constituent and | controlling element in the offense. The Georgia law on this subject, from | which this ordinance was largely drawn, | provided in order to meet this difficulty. | that fin all prosecutions proof of a pur- 1 chalse flor future delivery, where no actual delivery was made. and that set tlement was made or agreed to be made upon the differences in the value of the property, should constitute prima facie evidence of guilt; also that proof that anything of value agreed to be sold and
 delivered was not actually delivered, and that >of the parties to the agreement deposited or secured or agreed to do so
 margins, shall constitute prima facie evil
 dence of guilt
 Followed Georgia Law. The city having full charter power to
 suppress gaming. I followed the Georgia law in drafting the ordinance. and ln-
 corporated these two provisions into the
 ordinance as sections and 6-my object being to obviate the necessity of bring ing forward in each case the strict proof, which the general law requires shall be made, in proving these as well as other offenses when fin the very nature of
 the case all of the information and evil dence in reference to the intent of the parties which is. as I say. the crucial
 question. resides wholly and necessarily with the defendant and as in my judg-
 ment no hardship could be worked by such a provision against any legitimate business.
 The arrest was made In the case which vas tried without any fpvestigatjop into