The Birmingham age-herald., 1906-10-14
JUDGE FEAGINS DECISION
 WAS JUST, SAYS SMITH

4 N< AI A the facts surrounding the same, If 1 m. derstand the circumstances correctly. When we came to a trial the attorneys for the defendant were willing to admit the facts which made the case under sec- tons and 0 In other words. there was left out Of the agreement any statement as 10 intention to deliver vel non, and there were To oiroumstantla1 facts from which the court could be satisfied beyond a reasonable doubt that there was no n- tentlon to deliver, and that 1t was the in- tention of the parties to settle on dif- forences,
 Decision Was Just.
 Our court In construlna these future contracts in tho decisions to which I havo above refrered, have held that where thero ls 10 evidence of intention, the presump- ton will be that the parties intended to deliver So that the rule of evidence mado applicable to this ordinance In sections 6 and Is contrary to the general presump- ton obtaining in the state. l have no doubt in my own mind that the legislature has the power to give this authority to the city, to-wit, to empower the city to lay down the rule of evidence, such as was attempted to do In this case, but upon mature consideration of the authort- ties, l am of the opinion that thls must
 
 and since that has not been done, I am satisfied that Judge Fagans decision ln finding for the defendant and In declar ing sections and of this ordinance un- constitutional and void Is Just and proper.
 This, however should by no means be allowed to stop prosecutions for violations of this ordinance. We will simply have to fall back upon the position that we would have occupied if sections and had not been in the ordinance; that Is. we must prosecute where evidence of the intention of the parties not to deliver, but to settle on differences can be had in cases where there are purchases on margins for future delivery. It will be difficult to get direct evidence to this end. In fact. the defend- ants will be prepared in all cases to bring forward written contracts in which the statement of contemplated delivery is unequivoca1ly made. We must rely upon circumstantial evidence in all probability, and must bo prepared to overcome the presumption by actual proof.
 City's Future Plan.
 1 can illustrate to you what l mean by giving you a concrete example. Suppose I should go Into one of these so-called brokerage offices and instruct the man. ager to purchase for me 500 bales of De- cember cotton, the instruction given by the written contract, which states that a delivery is contemplated, and should put up $500 as a margin, and the broker should send this order to the New Orleans cot ton exchange, where a contract is taken for the purchase of the said cotton; l am a lawyer; l do not deal in cotton l am not connected In any way with any cotton mill nor with any spinners; I have no use for cotton from the industrial and manufacturing standpoint the full pur- chase price of the cotton Is $25,000 I could not raise money by December to pay any such amount in cash; l have no business connection in New Orleans; 1 have not been there for two or three years; I have never been to the stock exchange; l do not know where when or how a delivery would be made to me there; l neither export nor import cotton at that place, and do not know and am not known to any of the transportation companies, or any of the dealers or brokers who handle the export and import trade, and I have no connection with them in any way; finally sell out my cotton on differences without an actual delivery to me and either pocket a loss or a profit: and also the broker who makes this contract for me and to whom l give my order knows some or all of the facts to my cond tion above outlined. do not believe that under such circumstances any written contract will stand showing the inten- ton of the parties. 1 believe the crcum- stantfal evidence is too strong and I be- qieve in each ease like this a conviction can be had.
 May Use Policeman.
 If a competent investigation is made. I have no doubt that many such cases will appear and we will summon the book keepers of the brokerage office to bring with him the books of the office. when once we get start l believe under the decisions that the city has the power to station d police officer in each one of these brokerage offices. where there Is reasonable cause to believe that viola tons of this ordinance are being commit ted. I think that should be done and in addition thereto other means, such as are ordinarily taken for obtaining evidence in criminal cases, should be used to get such evidence as l have outlined above, if there Is any such evidence in existence.
 I sending copy of this letter 10 the chief of police as in 1t l have at tempted to indicate what investigation is necessary in these cases. and I earnestly recommend that full investigation of the matter be made and a vigorous attempt made to break up the practices prohibited in ordinance No. A.
 The assistant city attorney is as fa- miliar with the law in these cases as am. and we both will take pleasure in sisting you and the police department in every manner possible in the matter. Yours truly. E. D. SMITH.
 City Attorney.