The Birmingham age-herald. [volume] (Birmingham, Ala.) 1902-1950, 1909-11-05
ENEMIES OF THE Bic
CITY SCORE POINT
Benners Grants Temporary In
junction After Arguments
FRIENDS GET ALARMED
Claim Is Made That Bill Was Not
Properly Advertised and That
Joint Resolution Was Not
Properly Signed.
FRIENDS GET ALARMED

Enemies of a Greater Birmingham
scored the first point yesterday in the
new attempt to establish the unconsti-
nationality of the King bill, adopted dur
ing the recent extraordinary session or
ners has granted the Injunction prayed
for in the petition filed in the name Of j.
B. Simpson against ID. f. Susg and
w. II. Davis, mayor and treasurer of
Ensley, the order entered upon the chan
Gerry docket yesterday temporarily re-
straining the city officials of Ensley from
turning over to the city of Birmingham
the books and affairs in general of the
suburb. A $4,000 bond is required of the
complainant by the chancellor, and If this
bond is made the injunction issuing from
the chancery court will remain in force
until the case receives a final hearing.
Apparently the enemy has fired broad
side into the King bill and the loyal
friends of a Greater Birmingham are be-
coming somewhat alarmed. The injunc-
tion has been granted on the contention
that the Greater Birmingham bill was not
properly advertised prior to its introduc-
ton in the legislature.
Attorneys Felix e. Blackburn and
Walker Percy presented and argued the
bill for the complainant, while Attorneys
Fred Moore and D. J. Flummer represent
ed the defendants. Robert III. Thach, city
attorney of Birmingham, at the invita-
tion of the court, also took a hand in
the case against the granting of the in
junction.
After extended arguments and consider
alton of the case at length yesterday
morning the court held that the bill pre-
scented case calling for injunctive re-
lief and accordingly entered a decree
granting temporary injunction at the
same time requiring the complainant TO
make bond in the sum previously men
ton. 1t is understood that arrangements
for the required bond will be made at
once.
While the validity of the Greater Biz
minsham bill is attacked in the litigation
on numerous grounds, the two which seem
patiently to appear from the journals, ana
those pressed most strongly, were the
failure of proper advertisement of the bill
before its introduction in the legislature
and the failure of the speaker of the
house and the president of the senate to
sign the joint resolution recalling the bill
from the governor, as required by section
&C of the state constitution.
1t will be recalled that at the time
the bill was on it's passage in the house
test In which he Incorporated the af-
fidavit of T. B. Smith, secretary and
business manager of the Birmingham
Ledger, showing that the first insertion
of the bill appeared in the issue OF the
paper of July 7, and the bill was in
troduced on July 20. 1t will be thus
seen that the advertisement of the bill
appeared only % days prior to its in
PRODUCTION for passage by the legisla-
ture.
Chancellor Benners in rendering his
opinion, stated that the house journal,
which was attached to the bill, showed
two affidavits, one in general and un-
defined terms, expressing the conclu-
sion of the affiant, and the other spe-
showing the exact date of each inser-
ton of the bill in the paper. The chan
cellor made the statement that he
would accept the latter of these afr
davits as coming up to the proof re-
quired by the constitution.
1t is considered by lawyers that If
Chancellor Benners' ruling in the mat
ter holds, the defect which, 1t Is
claimed, exists will prove fatal to the
entire King Greater Birmingham bill,
applying not only to Ensley but to all
territory the annexation of which is
proposed in the bill calling for great
err city.
From all appearances now, it would
appear that while Ensley was fighting
against being annexed to Birmingham
under the King bill and becoming a
part of Greater Birmingham she was
not asleep.
At the time DR.. Tarrant filed his pro-
test in the legislature little or no atten-
ton was paid to it, no one seeming
to believe that it would ever amount
to anything. However, it seems that by
this move the enemies of Greater Bir-
mingham at Ensley entrenched them
selves for a future battle and it does
not appear improbable that the Step
may prove fatal to the King bill.
OF course, whichever way the case is
finally decided in the chancery court 1t
will be appealed The petition filed is
made to involve a part of the federal
constitution. thus opening the way for
appeal all the way to the supreme court
of the United States.
Birmingham Special, the