Boone v. State

SAYRE, J.

Section 6321, Code 1907, provides that: “Any officer, alderman, or councilman of any municipality in this state who shall act as the attorney for any public utility corporation doing business or exercising its franchises in the corporate limits of the municipality, must, on conviction, be fined not less than one hundred nor more than five hundred dollars, and may also be sentenced to hard labor for not less than one nor more than three months.” Appellant, having been convicted on an indictment charging a violation of this section, brings his case here for review.

Two reasons are urged why the statute is to be condemned as in conflict with the equal protection clause of the fourteenth amendment- of the Constitution of the United States: (1) It discriminates against corporations, and in favor of individuals, partnerships, and other unincorporated associations similarly situated and engaged; and (2) it -discriminates against, and places an unreasonable and arbitrary restriction upon, the occupation of practicing law. The statute, it is observed, makes it a misdemeanor for any municipal officer to act as attorney for a. public utility corporation, but leaves such officers free to act in that capacity for *62 individuals, partnerships, and other unincorporated associations, operating public utilities in all respects similar to that operated by the corporation. It is said to be unconstitutional and void in toto, as denying the equal protection of the laws to corporations, in that individuals, partnerships, and unincorporated associations are left with a wider field from which to select their attorneys and greater liberty in making one class of contracts than corporations similarly situated and engaged. In the other aspect it is said that attorneys are unjustly limited in the selection of their principals.

The fourteenth amendment provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” That corporations are persons within the meaning of this amendment is no longer open to discussion.—Southern Ry . Co. v. Greene, 216 U. S. 400 , 30 Sup. Ct. 287, 54 L. Ed. —. Discussing the fourteenth amendment of the Constitution of the United States and that section of the Constitution of Alabama which provides that all corporations shall have the right to sue, and shall he subject to be sued, in all courts in like cases as natural persons, in Smith v. L. & N. R. R. Co., 75 Ala. 449 , Stone, C. J., in line with many general expressions to be found in the decisions of the federal courts, said: “The sum of these provisions is that no burden can be imposed on one class of persons, natural or artificial, which is not, in like conditions, imposed on all other classes.” But the statute in question neither directly limits the right of corporations to have the widest field of choice in the selection of their attorneys, nor does it restrict attorneys generally in the selection of their principals. Its purpose and effect is to deny the right of municipal officers to accept employment from corporations operating public utilities within the limits of the municipality. Neither corporations *63 nor natural persons have a right to the services of any particular person, nor the right to the service of any person on particular terms; that is, they have no right to the services of municipal officers. It is the established doctrine of the Supreme Court of the United States, the final authority on the subject, that the liberty of contract is not universal, and is subject to restrictions passed by the Legislature in the exercise of its power to protect the safety and welfare of the people. There are manifold restraints to which every person is subject for the common good. —Jackson v. Massachusetts, 197 U. S. 11 , 2 Sup. Ct. 358, 49 L. Ed. 643 ; Williams v. Arkansas, 217 U. S. 79 , 30 Sup. Ct. 493, 54 L. Ed. —. In Frisbie v. United States, 157 U. S. 160 , 15 Sup. Ct. 586, 39 L. Ed. 657 , the Court says: “It is within the undoubted power of the government to restrain individuals from all contracts, as well as all individuals from some contracts. It may deny to all the right to contract for the purchase of lottery tickets; to the minor the right to assume any obligations, except for the necessities of existence; to the common carrier the power to make any contract releasing himself from negligence; and, indeed, may restrain all engaged in any employment which is against public policy. The possession of this poAver by the government in no manner conflicts with the proposition that, generally speaking, every citizen has a right freely to contract for the price of his labor, services, or property.” And in that case the act of Congress prohibiting attorneys to contract for a larger fee than $10 for prosecuting pension claims Avas held to be a valid exercise of the police power.

So, to turn to appellant’s second statement of his objection, the prohibition of the statute leaves attorneys unfettered choice in the acceptance of employment. It does, however, affect the right of those holding munici *64 pal office to contract for services to public utility corporations. In other words, the prohibition in question amounts to just this: It is one of the burdens of office, imposed, no doubt, in pursuance of a public policy deemed salutary by the Legislature. To hold office is no right; it is a privilege conferred by the lawmaking power, involving no element of contract, and to be enjoyed on terms resting entirely within the legislative discretion. We think it cannot be said that the policy of imposing this burden is unwise or unreasonable. It is'to be conceded that the Legislature, pursuing the same policy, might have gone further and extended the prohibition to the acceptance of employment by city officials from natural persons in like cases, and, no doubt, a, perfectly consistent expression of the policy would have included natural persons. That the policy has not been carried to its full extent is a matter of no legal concern to either corporations or attorneys. Prom the state’s right to regulate the conduct of its officers in whatever way may seem best to the state, it results that neither class is placed at a disadvantage in respect to the enjoyment of any legal right. In our opinion the statute is not unconstitutional.

The indictment preferred in this case is defective. In order to charge the offense denounced by the statute, it is necessary to aver that the defendant was an officer at the time he acted as attorney for the public utility corporation. Necessarily the two facts must coexist in order to constitute a violation of the statute. The pleader followed the language of the statute too literally. The exact point seems to have been decided by this court in Sikes v. State, 67 Ala. 77 .

Reversed and remanded.

Affirmed.

DowdktJj, O. J., and Anderson and Evans, JJ., concur.