Southern Express Co. v. City of Ensley

• Decision Date: 26 July 1902
• Citation: 116 F. 756
• Parties: SOUTHERN EXP. CO. v. MAYOR, ETC., OF ENSLEY et al.
• Court: U.S. District Court — Northern District of Alabama

116 F. 756

SOUTHERN EXP. CO. v. MAYOR, ETC., OF ENSLEY et al.

United States Circuit Court, N.D. Alabama, Southern Division.

July 26, 1902

F. G Du bignon and London & London, for complainant.

W. J Martin, M. J. Gregg, and Richard H. Fries, for respondent.

On December 15, 1901, the board of mayor and councilmen of the city of Ensley passed an ordinance 'to prescribe and fix licenses for businesses, occupations, professions and vocations in the city of Ensley, Alabama, for the year 1902 ' The first section ordained 'that the following be and the same is hereby declared to be the schedule of licenses for the year 1902, for divers businesses professions, occupations, and vocations carried on or engaged in the city if Ensley, Alabama, and each and every person firm, company or corporation engaging in any of the businesses, vocations, professions or occupations herein provided for shall pay and take out such license and in such sums as are herein provided,' to wit, 'express company, one hundred dollars.' Section 8 of the same ordinance declares that it shall be unlawful for any person, firm, or corporation to engage in any of the 'aforesaid businesses, occupations, professions, callings or vocations mentioned in this ordinance, or for which a license may be required, whether mentioned herein or not, in the city of Ensley, during the year 1902, without first having procured a license therefor; and any violation of this ordinance, upon conviction therefor, shall be punished by a fine of not less than one, nor more than one hundred dollars for each offense, or by imprisonment at hard labor for the city for not exceeding six months, one or both, at the discretion of the mayor trying the same, and each day shall constitute a separate offense. ' On the 8th of February, 1902, the Southern Express Company, a corporation created under the laws of Georgia, and a citizen of that state, filed its bill against the city of Ensley under its corporate name and the mayor, It is alleged in the bill that the express company has been for many years and is now engaged in conducting an express business for the forwarding and transportation of merchandise, goods, and moneys between the several states, and its lines extend over more than 10 states of the United States, and it now, and has been for many years, doing business in the state of Alabama as a common carrier engaged in interstate commerce, and that it has an office at Ensley, and at such office is doing business as a common carrier between Ensley and the various states, and in connection, by traffic arrangements with other express lines, has been doing business all over the United States. The bill then sets up the ordinance, the terms of which have been already stated, and alleges, in substance, that it seeks to impose a license for the privilege and right to do its business as aforesaid in the city of Ensley; that Scott, the mayor, on the 3d of February, 1902, fined complainant's agent $25 for doing business without a license prior to the 3d of February, 1902, from which judgment appeal was taken to the criminal court of Jefferson county, where it is now pending, undisposed of. It is further shown that, at a meeting of the mayor and city council of Ensley, a resolution was adopted to the effect that the agent of the express company at Ensley shall be arrested every day on which he does business in Ensley for the express company unless the said license of $100 is paid, and pursuant to that resolution the mayor caused the express company's agent, one Walker, to be again arrested for carrying on business without a license, and the said mayor informed the express company that he would continue to arrest the express company's agent, and he would be arrested each day until said license fee should be paid. It is further alleged that it is impossible to ascertain the extent of the injury to which complainant will be subjected by these continued and continuous arrests of its said agent, and that complainant is without any sufficient or adequate remedy to protect itself in the pursuit of its business aforesaid. An amendment was allowed by which complainant further shows 'that the value of its business in the city of Ensley which respondent has threatened and attempted to destroy is more than the sum of two thousand dollars, exclusive of all costs, and that the injuries to which orator will be subjected by these continued and continuous arrests will be more than two thousand dollars, exclusive of costs.'

On the filing of the bill a temporary restraining order was issued. The bill prayed for an injunction specially enjoining and restraining said defendants and each of them, their attorneys, agents, and officers, from further molestation of orator's said agent in the city of Ensley, and from the enforcement of said ordinance and resolution. Demurrers are interposed to the bill, the substance of which, so far as necessary here to be noticed, is that the bill fails to show that the complainant has complied with the laws of the state of Alabama as a condition precedent to doing business in this state, or has a legal or equitable right to enter and do business in the state of Alabama. The bill does not show that complainant is engaged in interstate commerce exclusively; that it fails to show that the fee or license is not imposed on complainant for doing business in the state of Alabama from Ensley to other points therein, and from other points in the state to Ensley; that the bill fails to show that the complainant did not have an adequate remedy at law for the things complained of. The bill fails to show that the arrests were violations of the constitution and laws of the United States, and also fails to show that this court has jurisdiction of the subject-matter of the suit.

JONES, District Judge (after stating the facts above).

1. The demurrers on the ground that 'the bill fails to show that complainant has

complied with the laws of Alabama as a condition precedent to its right to do business in this state,' and that it also 'fails to show that complainant is engaged in interstate commerce exclusively,' are neither of them well taken. Vance v. W. A. Vandercock Co., 170 U.S. 455, 18 Sup.Ct. 674, 42 L.Ed. 1100; Crutcher v. Com., 141 U.S. 47, 11 Sup.Ct. 851, 35 L.Ed. 649.

2. The LeLoup v. Port of Mobile, 127 U.S. 647, 8 Sup.Ct. 1380, 32 L.Ed. 311, an ordinance of the city of Mobile, in legal terms identical with the ordinance of the city of Ensley, was declared unconstitutional. The court said: 'It is urged that a portion of the telegraph company's business is internal to the state of Alabama, and therefore taxable by the state, but that fact does not remove the difficulty. The tax affects the whole business without discrimination. ' The license demanded here is therefore a lawless exaction. Pickard v. Car Co., 117 U.S. 34, 6 Sup.Ct. 635, 29 L.Ed. 785; Crutcher v. Com., 141 U.S. 58, 11 Sup.Ct. 851, 35 L.Ed. 649.

3. The right of the express company to do interstate business at Ensley is the very marrow of the contention here. The company by its bill says to the city: You have no right to meddle with my business. We ask the protection of the court to carry on our business in spite of the city. The city by its demurrer says to the company: The city has power to regulate and tax your right to do business. If you do not pay for the right, you shall not carry on business at all. Any decree on the merits of necessity settles these irreconcilable claims as to the right to do business. Inevitably the decree must determine the validity of the express company's claim of unrestricted right to do interstate business at Ensley. If the express company has that right, the bill must be retained, and the city authorities enjoined. If it has no such right, the bill must be dismissed, and the city authorities allowed to have their way. The extent of the particular burden is of no moment so long as there is a denial of any power to interfere with the business at all. The right to do business lies at the root of the whole controversy, and accompanies every phase of the contention. What is the value of the right? What is the amount of injury which complainant may sustain from the meddling with it? The allegations of the bill are that the value of the express company's right to do interstate business at Ensley, and the injury done to the express company's business by the arrests of its agent, would exceed $2,000. Clearly the controversy involves a value or amount within the jurisdiction. Complainant is seeking to enforce a right which is worth more than $2,000 to it, and to prevent damage threatened to an amount in excess of $2,000. Scott v. Donald, 165 U.S. 107, 17 Sup.Ct. 262, 41 L.Ed. 648; Railroad Co. v. McConnell (C.C.) 82 F. 72; Railroad Co. v. Frank (C.C.) 110 F. 689; Lanning v. Osborne (C.C.) 79 F. 657; Black, Dill. Rem. Causes, Sec. 63.

Fishback v. Telegraph Co., 161 U.S. 96, 16 Sup.Ct. 506, 40 L.Ed 630, upon which the respondent relies, is in no wise adverse to this conclusion. That case did not relate in any way to the right to license interstate business. The court declined to take jurisdiction there to enjoin the collection of taxes upon property, for the...