The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1906-07-21
SHORT WEIGHT CASE
is UP FOR ARGUMENT
Defense Makes New Point of
UnconStItutiOnaIity
VIGOROUSLY PROSECUTED
Attorneys VIII Submit Final Briefs On
July 81, When Judge Feagn
VIII Render a Decision
In the Case.

The case against F. b. Clark local agent
of the Cumberland Mills, for short weights
in the sale of flour was up before Judge
eagin in the police court again yesterday
for argument upon the constitutionallty of
the law under which the charge was pre-
ferred by Weights and Measures Inspector
Hall, and prosecuted by the assistant city
attorney, j. Q. Smith. The defense is rep
resented by'Attorney Hale
The case is claiming a good deal of in
terest because Of the fact that number
of wholesale houses will be affected by
the decision and because of the unique
question raised by the defense that of
the unconstitutionalty of the law. Similar
cases have come up from time to time
but they have always been fought on other
grounds.
While the case was argued yesterday
the attorneys will not submit their final
3 briefs until July 81. when Judge Feagin
will render judgment.
The points made by the defense are
these: That the law is unconstitutional in
that the charter of the city is an instru-
ment of delegated powers like the consti-
tuition of the United States; in short that
the city municipal authorities can pass
no ordinance which will be a valid and
binding law unless the authority to pass
such an ordinance is clearly granted 20
the municipality in the charter. or that
the authority to pass such ordinance can
be clearly implied under the charter
powers.
The city claims the right to pass such
an ordinance under section %. subdivision
81, of the city charter. which says that
1.-THE Mayor and Board of Aldermen shall
have full power and authority to pass and
enact inspection laws within the city,
and to regulate the weights and measures
of produce and provisions for man or
beast, and provide for the inspection and
guaging of liquors, and to punish the use
of false weights and measures" The de-
Tense claims that the meaning of the
words, "To punish the use of false weights
and measures imply the authority to pun
ish persons who use them. In the case
in question 1t Is not claimed that the de-
PENDANT used false weights and measures.
The farthest that the evidence can be
construed to 60 1t is said. is that he sold
weights which were stamped on the flour
sacks in another state, and which were
not weighed by him, therefore that ordi-
nance 1872 OF the city code, which provides
for the punishment of ANY person guilty
of violating any provision OF the char
ter, or any person or firm that Is guilty of
selling or offering for sale any article of
merchandise OF short weight or measure,
shall on conviction be fined" The city
holds on the contrary that If they have
no authority to pass the last-named ord-
nance under the subdivision 81, that they
have the authority under subdivision %
of section %, which is '"To punish all Of
lenses against the peace, good order,
morals, health or sanitation of the city,
or against the personal property of the
citizens, and to punish any act which is
by law misdemeanor against the state"
The city attorney claims that to sell
-four or other commodity in smaller
quantity than is represented is against
good morals, and is a fraud at common
law and therefore as common law exists
...e city has the authority to pass the or
dnance in question because the city has
the right to pass ordinance to punish
any act which is by law a misdemeanor
against the state.