The Birmingham age-herald., 1913-06-28
WISHES TO TEST
VALIDITY OF LAW
Board of Revenue Declines to Appeal
From Judge Sharpe's Decision and
Says Chief Mine Inspector
Must Defend His Position

tor of the state and his associates the OIL
inspectors.
Judge IL. ~ Sharpe ruled last week that
the office of county coal inspector had not
been abolished ana that section of the
act of 1911, purporting to abolish it, recog-
nized the county official. Governor O'Neai
however, holds that under the act of 1910
the chief inspector of mines was oil in
spector and would continue to perform the
duties of that office until the supreme
court has decided otherwise. This being
the case, the county OIL Inspector would
have job without fee or reward
The following eorro spondenee has passed
between the governor and the board of
revenue:
The Governors Letter
June %, 1913
Hon. r. f. Lovelady, President Board of
Revenue. Jefferson County, Birn1Tns-
ham, Ala:
Dear Sir l1y attention has just been
called to proceeding instituted for the
purpose of requiring your board to APP
point an inspector of oils for Jefferson
county.
- you ire aware, the last legislature
passed an act to regulate the sale of il
lumnants for use in the mines and made
1t the duty Of the chief mine inspector or
one of his associates to inspect before sale
poses in the mines of Alabama. This act
was approved April 81, 1911. According to
the provisions of section q, this does not
go into effect until the first day of March,
1873 the inspection up 10 that date to be
made by any local inspector selected by
law, but after that date such inspection
to be made by the CHIEF mine Inspector or
his associates. Section of the act repeals
all local laws in conflict with its pro-
visions. In view OF the fact that Judge
Fl. A Sharpe of the city court has held, as
am informed, that it is your duty to ap-
point an inspector, it occurs to me that lhe
question ought to be tested by the su,
preme court. 1t is very evident that if a
local inspector was appointed there would
necessarily be conflict with the state
mine inspectors.
Moreover, it would be very unfair for
the mines of this state to be under the
cOHlfOl, dS ldG do iii anu al Z
concerned Of one who is not mine in
spector and not familiar by training and
experience with the character of illumt-
Bants that should be used. The effect OF
such a rule would be 10 take away from
the chief mine inspector and his associates
control of the most important matters now
vested in them by law and might endan-
,,,f In
in your county.
1.-The state Is not party to this suit.
but it occurs to me that in view of the inn
portant questions involved there should be
an appeal from The decision of Judge
Sharpe SO that the question can be perma-
nently settlad by the supreme court l
co not believe tha. the act vesting in the
chief mine inspector and his associates
the powers conferred as to illuminants is
in violation of section II of the constitu-
tion. 1t neither creates or continues an
office for The purpose of inspecting nler-
chandise. If your board will order an
appeal the attorney general will give all
possible assistance and thus enable the
state to have this question finally settled.
Very truly yours,
EMMETT O'NEAL, Governor"
Answer of the Board
The following answer was made by w.
X Terry attorney for the board of reve
nue.:
June 27 1913
'Hon. Emmett O'Neal, Governor of Ala
bama, Montgomery Ala:
Dear Sir:-Your letter of the 18th inst,
to R. f. Lovelady, president of the board
of revenue of Jefferson, in reference to
the appointment of an inspector of oils
for Jefferson county, has been referred
to me as the attorney of the board. La
answer.
''In reply, desire to say that inasmuch
as the decision of Judge Sharpe did no,
involve the consttutionality of the ac!
of 1911. but was based solely upon tina
idea that the office of county oil inspec-
tor was not abolished, and that it was the
duty of the board TO appoint a county
inspector OF oils. the board feels that it
is it's duty to obey the writ and make
the appointment without taking an ap-
real The state mine inspector will have
the opportunity, no doubt, of testing the
of the act of 1911 in quo
warranto proceedings, which will doubt
less be instituted against him by the
appointee of the board of revenue. So
that the state mine inspector will have
any he has, in direct proceeding against
him.
''Under the view held by Judge Sharpe.
the constitutionality vel non of the act of
1911 was not necessary to a decision III
the mandamus proceedings before him
from which you ask the board to take an
appeal, so. that If an appeal were taken.
the case would probably be decided by
the supreme court without ever testing
the constitutionaity of the act of 1911, and
the matter which you desire to have
tested would be no nearer a solution than
1t is at present
Declines to Appeal
',rhe board desires me to say, that 1t
thanks you for the offer made in your
letter of the assistance of the attorney
general in order that the state might have
the question finally settled in the SUI
preme court, but in the view the board
takes Of the issues in the case decided
by Judge Sharpe, the question which you
desire to be settled would not be settled
by the supreme court, even though the
board of revenue should take an appeal.
as 1t was held by Judge Sharpe, that
the constitutionality of the act OF 1911,
was not involved in the case before him
The board. therefore, does not feel that
they would be justified in taking an ap-
peal, or that any light would be obtained
upon the constitutionality of the act of
1911 by taking an appeal.
''The constitutionality vel non of the
act of 1911. could only be tested by
direct proceeding, between such person