Ware v. Mobile County

• Decision Date: 08 May 1906
• Citation: 41 So. 153,146 Ala. 163
• Parties: WARE ET AL. v. MOBILE COUNTY.
• Court: Alabama Supreme Court

41 So. 153

146 Ala. 163

WARE ET AL. v. MOBILE COUNTY.

Supreme Court of Alabama

May 8, 1906

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

"To be officially reported."

Action by Mobile county against J. H. Ware and others. From a judgment for plaintiff, defendants appeal. Affirmed.

This suit was commenced by Mobile county, and sought to recover of the defendants license tax for the year 1903 of $250 for engaging in the business of buying and selling futures on commission for other persons in the city of Mobile, in the county of Mobile. The pleas were: (1) The general issue. "(2) Actio non, because they say that they paid the plaintiff the amount due for engaging in the business of buying and selling futures for other persons in the city of Mobile, such purchases and sales being made outside of the state of Alabama, and did obtain a license so to do prior to the passage of the act of the Legislature of Alabama approved _______ day of March, 1903, fixing said license at $500 to be paid the state of Alabama and $250 to Mobile county, and that they did engage in and carry on the business they were authorized to do by said license so obtained by them as aforesaid; and the defendants aver that the license so obtained by them has never been revoked or canceled by the state of Alabama --all of which these defendants are ready and willing to verify. (3) Actio non, because they say that their agent in the city of Mobile, in the state of Alabama receives orders from the customers of the defendants to buy and sell cotton futures upon the New York Cotton Exchange, in the city of New York, in the state of New York, said cotton so bought or sold to be received or delivered in said city of New York, in the state of New York; said agents of defendant sending said orders to defendant in the city of New York by telegram. And the defendants further aver that said agent of the defendant in the city of Mobile, in the state of Alabama also receives orders from the customers of the defendants for the purchase and sale of future cotton upon and in the New Orleans Cotton Exchange, in the city of New Orleans, in the state of Louisiana. All of said cotton so bought or sold to be received or delivered in said city of New Orleans in the state of Louisiana. That the said agent of the defendants in the city of Mobile, in the state of Alabama, telegraphed said orders to the agent of the defendants in the city of New Orleans, in the state of Louisiana, who executes the same upon and in said Cotton Exchange." And the same allegations made as to future cotton are made as to grain and other things for future delevery. "(4) The defendant amends the second and third plea by inserting in the place thereof the following: And for further answer to each count of the complaint defendants say that the only business which they did in this state of Alabama, in the city of Mobile during the time charged in the complaint, was interstate commence business, and that they could not be required by the state of Alabama, or Mobile county, in said state, to pay a license for doing such business because the levy of such license tax on such business was an unlawful interference with interstate commerce business, and in violation of article 1, § 8, par. 3, of the Constitution of the United States."

The cause was tried on the following agreed statement of facts "During the whole of the year 1903 defendants had an office in the city of Mobile, in the county of Mobile, in the state of Alabama. They also had offices in the city of New York, in the state of New York, and in the city of New Orleans, in the state of Louisiana, and in the city of Chicago, in the state of Illinois, each of which offices was connected by private telegraph wires with the said Mobile office. Said Mobile office was in charge of their agent, one Robbins, and was engaged in the business of buying and selling cotton futures for delivery on commission for the public generally and for special customers, said business being conducted in the following way, and in no other way They would undertake, through their agent, to buy or sell a cotton future contract for a customer in the cotton exchange in New York or in New Orleans, as he might select; he making at the time a deposit of money with his as a margin to protect them against law in making such transaction for him. When the customer gave the order to Ware & Leland either for a sale or a purchase of a future contract, it was not usual for anything to be said between them about a natural delivery of the cotton; but when the transaction was commenced by a purchase or sale of the cotton, Ware & Leland would immediately furnish to the customer a memorandum thereof partly written and partly printed, upon which the following stipulations were printed: 'On all marginal business we reserve the right to close transactions without further notice when margins are about exhausted, and to settle contracts in accordance with the rules and customs of the exchange on which the order is placed; it being understood and agreed in all trade that actual delivery is contemplated.' And: 'All purchases and sales made by us for you are made in accordance with and subject to the rules, regulations, and customs of the exchange on which the order is placed, and the rules, regulations, and requirements of the board of managers of said exchange, and all amendments that may be made thereto.' Such agent would thereupon transmit such order by their private telegraph line to the defendants' office in the city, without the state of Alabama, selected for such transaction. Such order would be thereupon executed by defendant by the purchase or sale, as directed, of a future cotton contract for such customer in the cotton exchange of the city to which such order was sent, and subject to the rules and regulations of such cotton exchange, which rules and regulations may be introduced in evidence by the defendants in this cause. Said contract would be held by defendant for such customer until he ordered the same closed up, when they would sell or buy another cotton contract against it, as might be necessary to cover the same or close it out, or receive or deliver the cotton on said contract. If a profit was made on the transaction, defendants remitted it to its agent in Mobile, who paid it over to the customer. If a loss was made, it was taken by the agent out of...