"Q.
Please state the reason why the employment was made, and the
contract which was made, and all of the facts concerning it.
-- Q. Well, I don't mean the reason exactly, but the
circumstances under which it was made.--A. The Legislature
had passed what is known as the 'extension of the
four-mile law' so that whisky was not to be sold in
Memphis, and on about the 25th to the 28th of June I was
approached by Mr. Bert Parker and Mr. Sam Baumgarten
representing certain individuals and themselves, and was
asked to go into the constitutionality of this law with
reference to determining whether, in my opinion, it was a
valid law. The law was to become operative on July 1, 1909,
and therefore it was necessary to know in advance of that
date whether they should close as soon after that as
possible; their statement being that the closing and stopping
of business would virtually injure them and cause all of
these gentlemen great loss. I was asked on what terms I would
do this work, and I told them that I would investigate the
act, with a view of determining whether I could do anything,
without any charge whatever, for if my work was not to
accomplish anything I didn't want them to pay for it.
That is a small matter.-- The contract was presented to me,
after working on this matter at very great length, and
quitting everything else at their request because of its
importance to them.-- Well, I withdraw that statement. I
spent three weeks, possibly, night and day, on it.-- I
concluded and believed that the act was unconstitutional,
explaining, however, that it might be declared
constitutional, because it was whisky legislation; that the
courts look with a little more favor on that sort of
legislation than they would on legislation having no moral
purpose, but that I thought there was a good fighting chance,
and that we would make the fight. The test case we were to
make; that was the original plan. We got Mr. Ernest Miller to
buy some whisky from a fellow and indict him, to raise the
question of the constitutionality of the law. Mr. Miller
bought it, or said he had, and indicted the party, and I made
a motion to quash the indictment, which was the proper legal
way to raise the question I was employed to raise. When that
matter came up in the criminal court there was some
technicality in the indictment; in other words, my motion
could have been sustained and the constitutionality of the
act not be decided. Therefore the Attorney General,
recognizing this was a test case, conceded the motion to
quash was good and recommitted the test case in which we were
interested to the grand jury.-- Well, this took up
considerable time, preparation, and study and work. The grand
jury didn't indict that man, but the Attorney General
procured other indictments. A number of the saloons had
closed at first, but in view of the fight we were making some
of them here and there, and those I represented were all
open. The question then, we concluded, under my employment,
would be determined by having the cases in which indictments
had been returned as the best way to test the case. Then
there were, I think, seven indictments, possibly more.-- One
of the signers of this paper was indicted; that is, Mr.
Parker. He was indicted, and that made a test case for us,
and I went to court, I think, seven or eight times, ready for
trial always, anxious for trial, and prepared for trial. For
one reason or another they continued the case, one time
because a witness for the state was not there, and another
time because the prohibitionists were negotiating to get them
some lawyers to fight the questions out with me, and they
couldn't raise the fee, or they didn't, and it went
over a week to give them that time, and another time a lawyer
was sick, but all in all I was up there either five or seven
times, I forget which.-- Well, this resistance and this
fight, of course, put a stop to the enforcement of the law
unless they could convict some one, and I was in court all of
these times ready for trial, and we never could get them to
try. Maj. Wright had filed a bill for the manufacturers to
test the validity of the manufacturers' act, which was a
kindred law passed at the same time.-- We concluded we could
get our test made from the manufacturers' suit, because,
if the Supreme Court would say that the retail liquor law was
unconstitutional, that would be effective in the
manufacturers' case. Thereupon I went to work and
prepared a very elaborate brief on this act, which I was
prepared to assail, and did assail it, and turned that over
to Maj. Wright, who printed that part in his brief on the
manufacturers' case. This was by agreement of the two
gentlemen who had acted for all the signers of the contract,
and it was under their instruction. Then I arranged with, or
requested, Judge Beard, Chief Justice of the Supreme Court,
to permit me to orally argue the act which I had been
employed by this contract to assail, so that I could be heard
on it, and I had prepared it at great length, and we felt it
would be better for a man who had from the outset been
devoting himself to this act to present it to the Supreme
Court, so that it would not just be passed without sufficient
argument.-- Judge Beard stated that he would give me this
time, but that particular case went to the boards because the
manufacturers' case had not been raised properly.-- Well,
I next took up, inasmuch as we could not get a trial on
indictment where it would come up direct, I then took up the
question of an injunction, and investigated that very fully,
with a view of filing a bill to enjoin the enforcement of
this act. It was then concluded-- time had been passing
along, and we had at each place been ready to fight, and the
public was seemingly losing interest in the enforcement of
the law, and we were preventing its being enforced, and had
prevented its being made effective, and that was the thing we
had started out to do--we then agreed to abandon the
injunction, because we had accomplished what we had started
out to do.-- Thereupon the Supreme Court met in April, 1910.
This contract recited that I was to prevent the enforcement
of the law until the spring of 1910, and I took no steps
about it until June, 1910. Then I demanded compensation under
this contract, because, my claim being that I had done that
which I had agreed to do, and for which they had agreed to
pay me. All paid me except Mr. Max Miller, Mr. John Parsica,
and the Arlington Hotel.-- Q. Now, Mr. Ewing, you stated that
after the case which you had instituted to test the law was
dropped by the state you took part in other cases of a
similar kind? A. Yes, sir. Q. At whose instance was that
done? A. At the instance of Mr. Parker and Mr. Baumgarten,
and then it was my own belief that I was employed to keep
that law from being enforced and to test it, and that it was
left with me as a lawyer to determine, in a large measure,
how that was to be done, having
in view the benefit to the men I represented. Q. State
whether or not it was necessary, in order for you to carry
out that contract, that it was done. A. It certainly was. I
couldn't do anything else. Q. You stated the prosecution
of these suits lagged? A. Yes. Q. When that stage was
reached, were you given any instructions with reference to...
